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The Transgender Bathroom Debate
at the Intersection of Politics, Law,
Ethics, and Science
Brian S. Barnett, MD, Ariana E. Nesbit, MD, and Rene´e M. Sorrentino, MD
The debate over whether transgender individuals should be allowed to use the public restrooms (including locker
rooms and changing rooms) that correspond to their currently expressed gender rather than their biological sex
has been of recent interest nationally. The first state law addressing transgender access to restrooms was in North
Carolina in 2016. This law prohibited transgender individuals from using the restroom that corresponded to their
gender. The terms used in the bill and other legal documents caused it to be referred to as the “bathroom bill.”
Shortly thereafter, such bills were proposed in many states. Proponents of the bills identify the need to protect
public safety by mandating that individuals use the facility that corresponds to their biological sex. Opponents
describe such bills as discriminatory. The debate about these bills incorporates ethics-related, legal, and biological
arguments. In this commentary, we review the history of such bills in the United States as well as the ethics-related,
legal, and evidence-based arguments raised in the debate.
J Am Acad Psychiatry Law 46:232– 41, 2018. DOI:10.29158/JAAPL.003761-18
On March 23, 2016, the Public Facilities Privacy &
Security Act,
1
also known as “House Bill 2” or
“HB2,” was passed by the Republican majority of the
North Carolina General Assembly and signed into
law by Republican Governor Pat McCrory.
1
This
was the first state law in the United States to address
transgender access to restrooms. The law stipulated
that individuals must use the restroom that corre-
sponds with the designated sex listed on their birth
certificates when in government buildings, such as
schools. The Public Facilities Privacy & Security
Act was passed in response to Ordinance 7056,
which was approved on February 22, 2016, by the
Democratic-majority Charlotte City Council.
2
The
ordinance prohibited discrimination against homo-
sexual and transgender individuals within the city
and was scheduled to take effect on April 1, 2016.
3
The most controversial portion of the ordinance al-
lowed individuals to use the restrooms that corre-
spond to their gender identity, rather than their bio-
logical sex. In addition to invalidating Ordinance
7056, HB2 also prevented other cities in North Car-
olina from passing similar ordinances.
The legislative battle surrounding HB2 quickly
gained national attention. On May 4, 2016, the Civil
Rights Division of the U.S. Justice Department sent
a letter
4
to the North Carolina Department of Public
Safety stating that, by complying with the law, the
Department of Public Safety was in violation of the
nondiscrimination provision of the Violence Against
Women Reauthorization Act of 2013,
5
Title VII of
the Civil Rights Act of 1964,
6
and Title IX of the
Educational Amendments of 1972.
7
A similar letter
was delivered to the President, Board of Governors,
and General Counsel of the University of North Car-
olina (UNC) system.
8
On May 9, 2016, Governor
McCrory, North Carolina Senate leader Phil Berger,
and North Carolina House Speaker Tim Moore filed
lawsuits against the Justice Department
9
seeking a
ruling that HB2 was not discriminatory and did not
violate federal law.
10
In response, the Justice Depart-
ment sued Governor McCrory, the North Carolina
Department of Public Safety, and the UNC system
for breach of federal civil rights laws.
11
On August 26, 2016, U.S. District Judge Thomas
Schroeder issued an injunction that prevented en-
forcement of HB2 within the UNC system until the
Dr. Barnett is fellow in the Massachusetts General Hospital/McLean
Hospital Addiction Psychiatry Fellowship, Harvard Medical School,
Boston, MA. Dr Nesbit is a Forensic Psychiatry Fellow, University of
California, Davis, Davis, CA. Dr. Sorrentino is Assistant Professor in
Psychiatry, Harvard Medical School, Boston, MA. Address correspon-
dence to: Rene´e M. Sorrentino, MD, 53 Winter Street, Weymouth,
MA, 02188. E-mail: rsorrentino@mgh.harvard.edu.
Disclosures of financial or other potential conflicts of interest: None.
232 The Journal of the American Academy of Psychiatry and the Law
ANALYSIS AND COMMENTARY
Justice Department’s case against North Carolina
was resolved. This was in response to a lawsuit filed
by Joaquín Carcan˜o, a transgender man who is an
employee at UNC’s Chapel Hill campus, along with
several other plaintiffs.
12
Following protests and boy-
cotts of the state by a variety of business and trade
organizations, which cost North Carolina nearly
$400 million in revenue,
13
an effort between Dem-
ocratic leaders in Charlotte and Republican state law-
makers was launched to repeal HB2. This effort re-
quired that the Charlotte City Council repeal
Ordinance 7056, which also included nondiscrimi-
nation ordinances not involving transgender individ-
uals. In return, the state General Assembly would
repeal HB2. Although the Charlotte City Council
repealed Ordinance 7056, the effort to repeal HB2
initially stalled when Republicans in the General As-
sembly insisted on a six-month cooling-off period,
during which local governments would not be able to
pass new ordinances regulating access to restrooms.
14
Because Democrats in the General Assembly refused
to accept this condition, HB2 remained in effect.
Although at least 15 state legislatures considered
bills similar to HB2 in 2016, none of them became
law.
15
Eleven states filed suit against the Obama ad-
ministration concerning the Department of Justice’s
new federal guidance on the right of transgender stu-
dents to use the restroom consistent with their gen-
der identity.
16
On February 22, 2017, the Depart-
ments of Education and Justice informed the U.S.
Supreme Court that the Trump administration was
instructing schools to cease following the guidance
issued by the Obama administration concerning this
matter.
17
On March 6, 2017, the United States Supreme
Court stated that it would not hear the case of G. G.
v. Gloucester County School Board.
18,19
This case con-
sidered whether Mr. Grimm, a transgender male,
could use the men’s restroom at his high school. In-
stead, the Supreme Court vacated and remanded an
earlier appeals court decision in favor of Mr. Grimm.
The lower court will reconsider this case, taking the
new guidance from the Trump administration into
account.
On March 30, 2017, North Carolina’s newly
elected governor, Roy Cooper, signed House Bill
142 into law after its passage by the state legisla-
ture.
20
Because this bill repealed HB2, transgender
individuals no longer have to use restrooms in gov-
ernment facilities that match the sex on their birth
certificates. However, House Bill 142 also grants the
North Carolina General Assembly exclusive power in
regulating access to multiple occupancy restrooms
and changing facilities. It also prevents local govern-
ments from passing nondiscrimination ordinances
until December 1, 2020.
Although activists have been advocating for na-
tional nondiscrimination laws for lesbian, gay, bisex-
ual, transgender, and queer (LGBTQ) individuals
for over 30 years, none has been passed.
21
In fact, 12
states have recently passed laws removing antidis-
crimination protections for LGBTQ persons, which
in some cases include legislation for nondiscrimina-
tory restroom access.
22
Currently, 18 states and the
District of Columbia have legislation that prohibits
discrimination against transgender individuals in
public accommodations: California, Colorado, Con-
necticut, Delaware, Hawaii, Illinois, Iowa, Maine,
Maryland, Massachusetts, Minnesota, Nevada, New
Jersey, New Mexico, Oregon, Rhode Island, Ver-
mont, and Washington.
23,24
However, as of Febru-
ary 18, 2018, bills aiming to limit restroom access
based on sex have been introduced into 19 state leg-
islatures: Alabama, Arkansas, Illinois, Kansas, Ken-
tucky, Minnesota, Missouri, Montana, New Jersey,
New York, North Carolina, Oklahoma, South Car-
olina, South Dakota, Tennessee, Texas, Virginia,
Washington, and Wyoming.
25,26
Most of these have
failed to become law. However, bills are still under
legislative consideration in six states
25
(Table 1).
History of Sex-Segregated Restrooms
The first sex-segregated restrooms date to the
1700s in Paris.
27
In America, sex-segregated rest-
rooms date to 1887, when Massachusetts enacted the
first law mandating that workplace toilet facilities be
separated by sex. Over the next 30 years, all other
states adopted similar laws.
Contrary to widespread opinion, the rationale for
sex-segregated restrooms is not rooted in biology and
anatomical differences. According to Terry Kogan,
the laws mandating sex separation “were rooted in
the ‘separate spheres’ ideology of the early nineteenth
century that considered a woman’s proper place to be
in the home, tending the hearth fire, and rearing
children” (Ref. 28, p 5). At that time, the legislature
was developing protective labor laws for women. The
separation of restrooms was an extension of these
special protections for women. The concept of sex-
specific areas was evident in public transportation,
Barnett, Nesbit, and Sorrentino
233Volume 46, Number 2, 2018
where public space was reserved for women (e.g., the
ladies’ car on railroads).
28
Kogan argues that the creation of sex-separate re-
strooms arose from the philosophical belief that
women need protective havens in the dangerous pub-
lic realm. In his article, he outlines four justifications
for separating public toilets: the sex-separated water
closet as a haven to protect the weaker body of the
woman worker; the sex-separated water closet as nec-
essary to provide workers with sanitary toilet facili-
ties; the sex-separated water closet as a space to pro-
tect a worker’s privacy; and the sex-separated water
closet as a space to protect social morality.
28
Today, sex-segregated restrooms are universal and
expected. Although gender equality has changed the
view of a woman’s “proper place,” there remains a
notion that women need to be protected. As our
society’s understanding of gender and sexuality
evolves, we have to consider whether sex-separate re-
strooms are justified.
Rationale for Gender-Neutral or Gender-
Inclusive Restrooms
Historically, transgender individuals have been ex-
pected to conform their behavior to their anatomical
sex; however, this notion is discriminatory. Trans-
gender individuals report frequent harassment spe-
cifically related to restroom use. According to the
2015 U.S. Transgender Survey, more than half
(59%) of respondents avoided using a public rest-
room in the past year because they were afraid of
confrontations or other problems they might experi-
ence.
29
Nearly one third (32%) of respondents lim-
ited the amount that they ate and drank to avoid
using the restroom in the past year. During that time,
respondents reported being verbally harassed (12%),
physically attacked (1%), or sexually assaulted (1%)
when accessing a restroom.
Today’s society is faced with the question of
whether transgender individuals should be expected
to conform their behavior to anatomical sex. A grow-
ing understanding of transgenderism, including an
evolution from a psychiatric illness (gender identity
disorder), has led to different perspectives on the ex-
pectations of transgender individuals. The rationale
for providing gender-neutral or -inclusive restrooms
is simple: such facilities would allow transgender in-
dividuals’ acceptance as well as equality.
Potential for Abuse of More Permissive
Restroom Entry Laws
Resistance to allowing certain individuals to use
restrooms consistent with their gender identity has
centered around three primary arguments. The first
of these is that an individual’s gender identity is de-
termined by their anatomical sex and individuals
who claim a gender identity that is inconsistent with
their anatomical sex have a mental illness. The sec-
ond of these is the belief that transgender individuals
are at increased risk of committing sexual assaults,
possibly secondary to perceived mental illness. This
is typified in a 2016 comment by David Omdahl, a
Republican member of the South Dakota Senate,
who stated about transgender individuals, “I’m sorry
if you’re so twisted you don’t know who you are—a
lot of people are—and I’m telling you right now, it’s
about protecting the kids.” He then went on to imply
that transgender individuals have a mental illness,
Table 1 Bills Currently Under Consideration in State Legislatures That Seek to Restrict Restroom Access Based on Gender
State Bill Name Summary Gender Determination
IA HF2164 Allows public and private entities to limit access to restrooms based on gender Not specified
IA SF2296 Allows schools to restrict access to multiple-occupancy restrooms based on gender Birth certificate
KY HB326 Stipulates that multiple-occupancy bathrooms in schools be restricted to one gender.
Schools must also provide reasonable accommodation for individuals who do not
want to use restrooms consistent with their gender
Anatomy and genetics
at time of birth
MO HB1755 Stipulates that all public multiple-occupancy restrooms must be “gender divided” Not specified
MO SB690 Stipulates that public school restrooms and locker rooms must be designated for the use
of individuals of the same gender only
Birth certificate
OK SB1223 Stipulates that multiple-occupancy restrooms and changing facilities in public schools
be restricted to one gender. Schools must also provide reasonable accommodation
for individuals who do not want to use restrooms consistent with their gender
Birth certificate
TN HB0888 Stipulates that public schools must require students to use restrooms and locker rooms
consistent with their gender
Birth certificate
WA HB1011 Allows public and private entities to limit access to restrooms and changing rooms
based on gender if an individual is transgender but preoperative or nonoperative
Anatomy
The Transgender Bathroom Debate
234 The Journal of the American Academy of Psychiatry and the Law
stating, “They’re treating the wrong part of the anat-
omy; they ought to be treating it up here,” as he
gestured toward his head.
30
We are unaware of any
studies assessing the relationship between transgen-
der identity and perpetration of sexual crimes. How-
ever, studies have consistently replicated the finding
that transgender individuals are often victims of sex-
ual assault. Nearly half (47%) of respondents in the
2015 U.S. Transgender Survey had been sexually as-
saulted at some point in their lifetime and 10 percent
of the incidents had happened in the past year.
29
The
third argument used by opponents is that if people
are allowed to use the restroom that is consistent with
their gender identity, individuals (usually male) with
sexual disorders such as pedophilic disorder, voy-
euristic disorder, or exhibitionistic disorder will dis-
guise themselves as members of the opposite sex to
sneak into restrooms and commit sex crimes. Former
Arkansas Governor Mike Huckabee embraced this
notion at the 2015 National Religious Broadcasters
Convention. In a controversial joke, Governor
Huckabee stated, “Now I wish that someone told me
that when I was in high school that I could have felt
like a woman when it came time to take showers in
PE.”
31
To assess the degree to which sexual predators may
take advantage of transgender friendly restroom laws,
we conducted a systematic search of PubMed, Nexis
Uni, and Google to find cases of such behaviors.
Although the searches of PubMed and Nexis Uni
returned no pertinent results, the Google search re-
turned websites for conservative organizations such
as the Family Research Council, American Family
Association, the Liberty Counsel, and Breitbart,
which have compiled lists of alleged cases. These
websites claim that the compiled incidents are ev-
idence that transgender individuals or individuals
taking advantage of transgender-friendly restroom
provisions will prey upon victims in rest-
rooms.
32–36
A thorough review revealed that only
a small number of cases actually involved perpe-
trators who were transgender, perpetrators who
falsely claimed to be transgender, or perpetrators
who attempted to disguise themselves as a member
of the opposite sex to gain restroom access. These
are detailed in Table 2.
Table 2 Sex Crime Cases Occurring in Restrooms or Changing Facilities
Year Location
Dressed as
Opposite
Sex* Description of Incident Location of Incident
Perpetrator’s
Gender
2016 ID No Cell phone used to take photos of a victim
27,29,30,32
Women’s department store
dressing room
Transgender
woman
2016 WA No Undressed; did not identify as female, but stated
new state law allowed him to be there
28,31,32
Women’s locker room at a
public pool
Cis-gender man
2015 WA Yes Cell phone used to photograph a victim
32
Women’s restroom Cis-gender man
2015 VA Yes Victim filmed
28,31,32
Women’s restroom at a mall Cis-gender man
2015 Alberta Yes Victim filmed changing
32
Women’s changing room Cis-gender man
2014 CA Yes Attempted sexual assault
32
Women’s restroom Cis-gender man
2014 Ontario Yes Sexual assault of two women
31
Women’s shelter Cis-gender man
2014 WA Yes Camera placed in a restroom
32
Women’s restroom Cis-gender man
2013 Ontario Yes Mirror used to peer into an adjacent stall
32
Women’s restroom Cis-gender man
2013 CA Yes Police allege perpetrator attempted to film women
in restrooms
30,32
Women’s dormitory Cis-gender man
2013 CA Yes Victim filmed
28,30,31,32
Women’s department store
restroom
Cis-gender man
2012 WA Yes Showered for sexual gratification
30,32
Women’s locker room Cis-gender man
2011 United Kingdom Yes Cell phone used to photograph victims and audio
record them urinating
30,32
Women’s restroom Cis-gender man
2011 OR Yes Locker room entered
28,30,32
Women’s locker room at a
water park
Cis-gender man
2010 CA Yes Cell phone used to photograph women
28,32
Locker room Cis-gender man
2010 GA Yes Undressed in front of children
28,32
Women’s restroom Cis-gender man
2009 CA Yes Loitering for several minutes
28,32
Women’s restroom Cis-gender man
2008 IN Yes Cell phone used to photograph a woman
28,32
Locker room Cis-gender man
2004 PA Yes Locker room entered
32
Women’s locker room Cis-gender man
2003 Japan Yes Observed nude women
30
Women’s resthouse Cis-gender man
* Individuals were transgender, falsely claimed to be transgender, or appeared as the opposite gender.
Barnett, Nesbit, and Sorrentino
235Volume 46, Number 2, 2018
We were able to locate only one report of a trans-
gender individual committing a sexual offense (tak-
ing photos) in a dressing room. Instances of cis-
gender men dressing as women to gain access to
women in various stages of dress also appear to be an
extremely rare phenomenon based on our review. Of
the incidents in which cis-gender males dressed as
women to gain access to female facilities, 11 occurred
in restrooms and 7 occurred in other female facilities.
Whether the advent of transgender-inclusive rest-
room laws results in an increase in sexual assaults in
restrooms on a population level is unknown at this
time. Although several police departments report no
observed increase in sexual violence or public safety
problems in jurisdictions that have nondiscrimina-
tion laws,
37
we are unaware of the existence of any
formal studies assessing the relationship between
transgender-inclusive restroom laws and rates of sex-
ual assaults in those jurisdictions. There may be in-
cidences of sexual assaults after the passage of more
permissive laws, but we have not found any studies
supporting an increase in such assaults.
Ethics-Related Implications
Nondiscrimination bills regarding restroom access
raise several ethics-related concerns. Advocates of a
bill make utilitarian arguments (i.e., the best course
of action is to implement a bill, because it benefits the
majority) and raise the harm principle as a reason to
limit a transgender person’s autonomy with regards
to his or her choice of restroom. Opponents to these
laws make arguments about human rights and the
principles of respect for persons, justice, and auton-
omy; these arguments are supported by consequen-
tialist rationales. In other words, opponents to rest-
room access bills believe that the laws are ethically
problematic because they have negative conse-
quences for the transgender community.
Human rights form the basis for how we respect
the dignity of others. Divan et al.
38
said, “providing
equal access to public facilities, and developing and
implementing anti-discrimination laws and policies
that protect trans people in these contexts, including
guaranteeing their safety and security, are essential to
ensure that trans individuals are treated as equal hu-
man beings” (Ref. 39, p 3). Those in favor of allow-
ing transgender people to use the restroom that is
consistent with their gender identity argue that trans-
gender rights are human rights.
39
They state that,
like all people, transgender people have fundamental
rights to life, liberty, equality, health, privacy, and
expression; laws that interfere with their ability to
safely express their gender identity interfere with
each of these rights.
38
Opponents to these bills also make arguments
based on the principle of justice, which can be de-
scribed as “fair, equitable and appropriate treatment
in light of what is due or owed to persons” (Ref. 40,
p 226). The principle of justice arises from Aristotle’s
principle of formal equality, which says that “equals
should be treated equally, and unequals unequally”
(Ref. 40, p 227). In other words, people should be
treated differently only if there is a relevant reason to
do so. For example, a man should not be paid more
than a woman to work at a cash register just because
he is a man. The disparate salaries would be a form of
injustice because his sex is not relevant to the work
that he performs. However, there are instances when
it is justifiable to treat people differently. For exam-
ple, when a person engages in a criminal act and
infringes on the rights of others, it is acceptable to
restrict his freedom of movement by imprisoning
him.
The problem with Aristotle’s principle is that it
requires specification and interpretation and lacks
the substance needed to apply to more complex sit-
uations. For example, two general justice arguments
are made about legislation. Advocates of equal access
to restrooms say that transgender women are not
different from biological women in any relevant way;
therefore, to be just, transgender women should be
allowed to access the women’s restroom. Con-
versely, advocates of equal access laws say that
these two groups should be treated differently be-
cause they are unequal in a very relevant way: bi-
ological sex characteristics.
Opponents to legislating equal access to restrooms
also argue that such laws violate the principle of re-
spect for persons. This principle requires the protec-
tion of vulnerable individuals. The political aspects
of vulnerability are related to social, economic, and
cultural factors.
41–43
In other words, a person is vul-
nerable on the basis of
. . . being a member of a population or a group with special
needs or barriers to care from a variety of conditions or
circumstances and are less able than others to safeguard
their own needs and interest and/or are at high relative risk
of suffering poor physical, psychological, and social health
[Ref. 42, p 283].
Ekmekci
43
argues that transgender individuals are
vulnerable from a political perspective, because they
The Transgender Bathroom Debate
236 The Journal of the American Academy of Psychiatry and the Law
are susceptible to exploitation because of disadvan-
tages resulting from social isolation, high incidence
of disease, and lack of social supports and health
services.
Opponents state that equal restroom access laws
create discriminatory environments and fuel stigma-
tization and transphobia, which in turn lead to worse
health outcomes. For example, Reisner et al.
44
found
that those who had experienced public accommoda-
tion discrimination within the past 12 months re-
ported high rates of physical and emotional symp-
toms. Testa et al.
45
found that gender minority
external stressors, including rejection, victimization,
and discrimination, related to increased risk of suicidal
ideation through the experience of internalized trans-
phobia and negative expectations of others’ treatment
of them. Similarly, Seelman and colleagues
46
found
that the suicide rate of transgender college students who
had been denied gender-congruent restroom access was
1.45 times higher than those who had not been denied
access.
Opponents of the bills also point to several studies
that show how discrimination against transgender
people leads to violence, poverty, and isolation. Dis-
crimination has also been shown to interfere with
transgender people’s access to social and economic
support systems as well as health care.
38,47–50
Oppo-
nents assert that, because transgender individuals are
vulnerable and because equal restroom access leg-
islation creates discriminatory environments that
lead to violence and poor health and socioeco-
nomic outcomes, on the basis of the principle of
respect for persons, society should protect this
group by ensuring that transgender rights laws in-
clude protections that cover public accommoda-
tions, including restrooms.
44
The second component of the principle of respect
for persons is that autonomous beings should be able
to act autonomously, or by their own deliberation
and choices. Based on this, opponents to equal rest-
room access argue that a person should be allowed to
decide which gender he chooses to express and to act
in accordance with that gender. However, there are
some restrictions to autonomy. For example, people
should be allowed to label themselves however they
wish: Republican, Jewish, heterosexual, man, or
woman. However, others do not necessarily have to
respect this self-identification if it has meaningful
consequences for them. If it does have meaningful
consequences, based on the principle of harm, there
may be grounds to restrict such self-identification.
51
Advocates of legislating equal access to public accom-
modations say that there are grounds to restrict this
self-identification if it guarantees biological men ac-
cess to the women’s restrooms, because their pres-
ence jeopardizes the safety of the biological women
and young children.
Advocates of legislation also make utilitarian argu-
ments in favor of these laws. Utilitarians assert that
the most ethical course of action is the one that pro-
motes the greatest utility, or, generally speaking, the
greatest good for the greatest number of people. Pre-
dictably, the utilitarian material principle of justice
is, “to each person according to rules and access that
maximize social utility.” Because there are more cis-
gender people than there are transgender people, it
may be of greater utility to maximize the comfort of
cis-gender people.
In summary, opponents to equal restroom access
make arguments about human rights and the princi-
ples of respect for persons, justice, and autonomy,
whereas advocates of the bills raise utilitarian argu-
ments and the harm principle. Opponents argue
that, like all people, transgender people have funda-
mental rights to life, liberty, equality, health, privacy,
and expression, and it is only by respecting persons
that we can ensure social, economic, and cultural
influences that promote human and societal flourish-
ing. Furthermore, the fact that discrimination
against transgender individuals has been associated
with poor health and socioeconomic outcomes is
compelling. Based on these data, it seems likely that
legislation that prohibits transgender individuals’ ac-
cess to gender-congruent facilities would lead to
worse health and socioeconomic outcomes for this
population. However, to date, no empirical studies
have looked at the relationship between the restric-
tive legislation and markers of health and well-being
for transgender individuals.
As described above, there is also little evidence that
respecting a person’s self-identification as a certain
gender and allowing that person to use the restroom
consistent with that gender causes harm to others.
The discomfort that some cis individuals who en-
counter an obviously transgender individual in the
restroom may feel is a minor harm that pales in com-
parison to the results of the discrimination that trans-
gender individuals may experience as a result of the
denial of access. If this is true, then the consequences
of the bills are not substantial enough to justify re-
Barnett, Nesbit, and Sorrentino
237Volume 46, Number 2, 2018
stricting a transgender individual’s right to express
his gender identity by using gender-congruent facil-
ities. However, the relationship between legislation
regarding restroom access and rates of sexual assault
against cis-gender individuals in public restrooms has
not been studied empirically. Therefore, opponents’
theoretical arguments require strengthening by addi-
tional research into this area.
Legal Implications
Constitutional Arguments
Several constitutional arguments have been made
in both support and opposition to legislation govern-
ing access to public accommodations. These argu-
ments are based on the Equal Protection and Due
Process Clauses of the Fourteen Amendment, and
the right to privacy as derived from the penumbra of
the First, Fourth, Fifth, and Ninth Amendments.
Although the Fourteenth Amendment to the United
States Constitution promises equal protection and
due process for all people, the Equal Protection
Clause was only recently applied to transgender
rights.
52
Courts apply one of three standards to Equal Pro-
tection cases: rational-basis review, intermediate
scrutiny, or strict scrutiny. If a law infringes on a
fundamental right or targets a suspect class, courts
turn to strict scrutiny, under which “classifications
are constitutional only if they are narrowly tailored
measures that further compelling governmental in-
terests.” Suspect classes include race, national origin,
and religion.
53
Although Judge Jed Rakoff of the
Southern District of New York ruled in 2015 that
gender identity or transgender individuals constitute
a “quasi-suspect” class, other courts have not adopted
this view.
22
Because gender is not a suspect class, it
does not invoke strict scrutiny; however, it does war-
rant intermediate scrutiny because there is “real dan-
ger” that seemingly reasonable policies in fact reflect
“archaic and overbroad generalizations...[or] out-
dated misconceptions [about gender]”.
53
The Equal
Protection Clause has been raised both by supporters
and opponents of equal restroom access bills:
whereas advocates of the laws say that, for example, a
transgender woman is not being treated any differ-
ently than any other biological male by being man-
dated to use either a male or single-stall restroom,
opponents argue that she is not being awarded the
same protection that other females receive.
Advocates of transgender rights have also pointed
to the landmark decision in Obergefell v. Hodges,
which holds that the fundamental right to marry is
guaranteed to same-sex couples by the Due Process
and Equal Protection Clauses of the Fourteenth
Amendment. In Obergefell v. Hodges, the majority
opinion stated that “the Constitution promises lib-
erty to all within its reach, a liberty that includes
certain specific rights that allow persons, within a
lawful realm, to define and express their identity”
(Ref. 54, p 2593). As Skinner-Thompson says, “The
court’s recognition that both due process and equal
protection require that individuals be permitted to
self-determine—to define and express themselves—
has unmistakable extension to rights for the transgender
community”.
55
Therefore, although the Supreme
Court has yet to address restroom access, Obergefell v.
Hodges may have set an important precedent.
Proponents of restroom laws cite these laws as pro-
tecting Constitutional rights to privacy: “a woman
has a reasonable expectation [of privacy] that she will
not encounter men in the restroom.”
54
However,
public restrooms are already designed to protect pri-
vacy by providing individual stalls. In addition, social
norms already require people to keep their eyes to
themselves when in public restrooms. Therefore, it
seems that the privacy argument must not be about
privacy in the typical sense, but rather “modesty” or
“gender privacy” (i.e., not being seen by members of
the opposite sex).
51,53
Regardless, denying access to
restrooms consistent with a person’s gender alienates
people in “a manner that is disproportionate to the
privacy concerns at stake.”
51
Opponents to the restroom laws also raise con-
cerns about privacy. The restroom laws presuppose
that someone will enforce the law, perhaps by using
information from a birth certificate. Not only would
this be incredibly intrusive and difficult to enforce,
but also the Due Process Clause of the Fourteenth
Amendment prevents the government from disclos-
ing a person’s intimate and sensitive information,
including whether they are transgender.
55
If trans-
gender people were forced to use restrooms that did
not correspond with their genders every time they
used a public restroom, it would identify them as
transgender every time.
Role of the Forensic Psychiatrist
Forensic psychiatrists may be asked to assist in
cases involving transgender individuals and public
The Transgender Bathroom Debate
238 The Journal of the American Academy of Psychiatry and the Law
facilities in the following manner: to determine
whether an individual is transgender; to determine
emotional damage in a transgender individual who
has been harassed in relation to a public facility; to
educate the trier of fact about the likelihood that
creating gender-inclusive restrooms will result in sex-
ual assaults; or to determine the needs of a transgen-
der individual in a correctional setting. In light of the
recent legislation, forensic psychiatrists have been
asked to opine the potential dangers in the establish-
ment of gender-inclusive restrooms. More specifi-
cally, expert opinions may be sought to assist legal
decision makers in assessing the risks and benefits of
creating such laws.
56
The forensic psychiatrist working in this area
should be familiar with the relevant Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edi-
tion (DSM-5) diagnoses. The diagnosis gender iden-
tity disorder was removed, and gender dysphoria dis-
order was added. Transgenderism is no longer
considered a mental illness. However, forensic psy-
chiatrists may be asked to determine whether an in-
dividual is truly transgender or is malingering a trans-
gender identity. Organizations such as The World
Professional Association for Transgender Health
(WPATH) and The Endocrine Society have issued
clinical practice guidelines for the treatment of trans-
sexual persons.
57,58
Although these guidelines may
be useful in understanding transgender individuals,
there is no standard gender screening tool or instru-
ment used to diagnosis a transgender identity. There-
fore, the diagnosis is largely based on self-report. Col-
lateral information from previous providers, families,
and significant others may be helpful in understand-
ing the individual’s reported transgender experience.
In addition to familiarity with the presentation of
a transgender individual, forensic psychiatrists
should be familiar with psychiatric comorbidities in
this population. When the forensic question relates
to the risk of sexual offending, the forensic psychia-
trist should perform a psychosexual evaluation that
includes a review of systems for the paraphilic disor-
ders as well as the determination of identified risk
factors for sexual offending.
Most forensic psychiatrists do not have experience
working with transgender individuals. The most
common setting for a forensic psychiatrist to en-
counter a transgender individual is in the correc-
tional setting. In this setting, a forensic psychiatrist
may be asked to opine about the risks involved in
placing the individual in sex-congruent facilities. Al-
though the courts will decide whether transgender
individuals should have access to gender-neutral
restrooms, the forensic psychiatrist can provide
answers about the psychiatric implications of such
decisions.
Conclusions
From a scientific and evidence-based perspective,
there is no current evidence that granting transgen-
der individuals access to gender-corresponding rest-
rooms results in an increase in sexual offenses. How-
ever, the arguments for and against legislating access
to public accommodations are not simply answered
by science. The basis for differing opinions includes
whether transgender individuals are mentally ill and
whether there are legal and ethics-related justifica-
tions for gender-inclusive restrooms.
Psychiatrists, not unlike the general public, have
struggled to conceptualize transgender individuals.
The DSM-5 adopted the new term gender dysphoria
to replace gender identity disorder, which defined
transgender as a mental illness. This significant
change, now only four years old, is not understood by
the community at large. As psychiatrists, we must
educate others about what constitutes a mental ill-
ness (i.e., gender dysphoria) and what is considered a
healthy variant of gender expression (i.e., transgen-
derism). As forensic psychiatrists, we may be asked to
opine about whether gender-inclusive restrooms
pose risks for transgender individuals and their cis-
gender peers. It is important to be aware of societal
bias as well as our own bias when performing these
evaluations. As the debates continue in this area, we
should remain focused on evidence-based data to
provided competent, objective opinions.
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