by Sean Philpott-Jones, Chair, Bioethics Program of Clarkson University & Icahn School of Medicine at Mount Sinai
The Problem with Binary
Throughout his raucous 2016 campaign, President Trump repeatedly claimed that he would be an ardent defender of the lesbian, gay, bisexual and transgender (LGBT) community. During the Republican National Convention, for instance, he proclaimed that, “As your president I will do everything in my power to protect LGBTQ citizens.” Despite this statement (which stood in stark contrast to the Republican Party’s virulently anti-LGBT political platform), and diverging from the public comments and actions when he was still a private citizen, since gaining the nomination and later the presidency, Donald Trump has largely kowtowed to the more homophobic wings of his party.
Although he has yet to repeal an Obama-era order protecting LGBT federal employees from workplace discrimination, for example, he has repeatedly expressed support for the First Amendment Defense Act. Modeled on the anti-LGBT legislation passed in Indiana when Vice-President Pence was governor of the Hoosier State, that Act would allow individuals, businesses, and healthcare providers to deny services to LGBT individuals based on their religious beliefs.
More recently, in spite of prior comments that “people should use the bathroom that they feel is appropriate,” Trump rescinded existing protections for transgender students. Previously, the federal government had issued guidelines that, while not legally binding, required public schools to allow transgender students to use bathrooms that corresponded with their gender identity rather than biological sex. Under the Obama administration, the Departments of Justice and Education had taken the position that existing regulations like Title IX, the federal law that prohibits sex discrimination in schools, also applied to discrimination based on gender identity. That is no longer the case.
By taking these positions publicly, the Trump administration has emboldened anti-LGBT advocates and led conservative lawmakers to push for increasingly restrictive regulations. Just this week, prompted by the federal government’s reversal on transgender rights, the Supreme Court announced that it would not hear the case of Gavin Grimm, a transgender boy from Virginia who is banned from using the men’s room at his local high school. That case has been sent back to the lower courts, which had previously ruled in Mr. Grimm’s favor. Legislators in that state have also introduced a bill that would block transgender people from using the public restrooms of their choice.
Conservative lawmakers in other states have also followed suit, drafting legislation similar to North Carolina’s controversial HB2 bill. That law not only invalidated local ordinances designed to protect LGBT individuals from discrimination, but also required individuals to use restrooms and changing facilities that correspond to the sex on their birth certificates rather than their gender identity. All told, these so-called “bathroom bills” have been introduced in 14 states since the start of the 2017 legislative session, including Illinois, Kentucky, Minnesota, New York, Tennessee, Texas, Virginia, and Washington. Proponents of these bills argue that they are about public safety; these bills are needed to prevent sexual predators from gaining access to women’s bathrooms and locker rooms. This claim, however, is not supported current crime statistics.
Not all of these bills will pass but many are likely to, particularly in more conservative states like Kentucky, Tennessee, and Texas. Consider the pending Texas law: Senate Bill 6. That law, which got its first legislative hearing yesterday, would require school districts and other state entities to limit access to public restrooms and changing facilities based on an individual’s “biological sex.” Biological sex, as defined in the statute, is the condition of being male or female as stated on a person’s birth certificate.
Now consider the controversy surrounding one of Texas’ high school wrestling starts: Mack Beggs. Last week, Mr. Beggs won the state championship in the 110-pound class. But he did so in the girls’ competition, handily beating Chelsea Sanchez for the win. Mack is transgender and identifies as male. Although Mr. Beggs would prefer to wrestle the other boys in the state, he is not allowed to because existing rules in Texas require that an athlete compete according to their birth sex rather than gender identity.
Moreover, for the past two years, Mack has been taking testosterone as part of his hormone therapy, giving him a more ‘male’ pattern of physical development. This includes greater muscle mass compared to women of a similar age, raising questions whether or not he had an unfair advantage over his female opponents. It also raises a real concern about safety, rather than the red herring argument used by bathroom bill supporters.
Controversies like these highlight the problem with these so-called bathroom bills. By trying to force people to meet a binary definition of sex, rather than recognizing the fluidity of gender identity, we end up creating more problems than we solve. If anything, these bathroom bills and other anti-transgender policies are little more than bigoted answers to questions that don’t exist.
As the visibility of this community increases – through the public activism of celebrities like Laverne Cox and the private courage of kids like Mack Beggs – our society is going to have to address the issue of transgender rights head-on. Cautious estimates put the number of transgendered Americans upwards of 1.4 million individuals. That’s a large number of people, and they are our coworkers, neighbors, friends, and relatives. They deserve respect and recognition of their humanity, despite what opportunistic politicians like Trump and Pence might think.