Battle of the Bathroom

Why the fight for transgender rights has moved into the most intimate of public spaces.

Bathroom humor still works in politics, at least for Dan Patrick, the lieutenant governor of Texas. A talk-radio host with Lone Star swagger, he took the stage at the 2016 Republican state convention in May to the sounds of a slide guitar, packing one-liners like slugs in a six-gun. “It is great to be in the largest Republican convention on the planet,” he began, “and not one man wants to use the ladies’ room.”

Laughter and applause filled the room as Patrick paced with a microphone, chambering another round. “Now just so you are not confused, when you go to the restroom, the M does not stand for ‘make up your mind,’ and the W does not stand for”–here he paused, changing his voice to a higher register–“‘whatever.’”

The people Patrick had labeled “confused,” the ones he did not see in the room, are a small fraction of humanity, perhaps three-tenths of 1% of adults, according to one study (maybe 1.8M people). They are men and women, boys and girls, who identify with a gender that does not line up with the sex that is recorded at their birth. For decades they have lived, sometimes literally, in shadows, the subject of taunts, the victims, disproportionately, of homelessness, violence, depression and suicide. But that shadow is fading, and the evidence is everywhere.

In the wake of a Supreme Court ruling legalizing same-sex marriage, the social battleground has shifted to new frontiers. Stars like Caitlyn Jenner and Laverne Cox have brought a pop-culture spotlight to trans issues, and corporate leaders have closed ranks to protect their transgender employees. With the power of federal purse strings, the Obama Administration has declared that all students must be treated equally regardless of gender identity, defining innate feelings of male and female identity as legally protected facts.

“We see you, we stand with you, and we will do everything we can to protect you going forward,” U.S. Attorney General Loretta Lynch told transgender Americans on May 9. It was a remarkable statement from an Administration that less than six years ago lifted the ban on gays and lesbians serving openly in the military, but continued to ban transgender soldiers from publicly identifying themselves.

This rapid remaking of the social fabric was the reason for Patrick’s jokes, and the fuel for a furious debate pitting state leaders against the federal government.

Patrick demanded that the superintendent resign and vowed to pass a new state law to overturn the guidelines within a year. “It’s common sense,” he told the Republican convention, to more cheers. “It’s common decency.”

By this, he meant his focus was not the interests of a much-maligned minority but the perceived threats, as yet unfounded, to the majority. “We don’t want any child for any reason to ever be harassed or bullied,” Patrick argued, despite his introductory jokes. But, he continued, women need protection in the bathrooms, the changing rooms, the shared showers. “We will stand up for women and girls in America and in Texas,” he thundered to more cheers. “You deserve your privacy, you deserve your dignity, you deserve your comfort and your safety when you go to the ladies’ room.”

President Obama and his aides use those same words–dignity, safety–to describe the fight from the other side. And so in a divided country, the social battle lines have been drawn once again in our most private of public places.

The public bathroom may be shared, but it is no common space. It is a rare place of forced vulnerability, where our insecurities and excretions mix with the sounds and smells of strangers, where our individual and collective fears can linger. From the founding of America’s sex-specific toilets in the late 19th century, they were symbols for concerns unrelated to their immediate purpose. “One might think that it makes perfect sense, that bathrooms are separated by sex because there are basic biological differences,” says Terry Kogan, a professor of law at the University of Utah who has studied the topic. “That’s completely wrong.”

The first state to require separate toilets was Massachusetts in 1887, and the reason was anxiety over women entering the workplace, in the large factories of New England. Policymakers in the 19th century argued that women were weaker and needed protection from the harsh realities of men’s spaces. The early ladies’ rooms were equipped with curtains and chaise longues. Within 30 years, almost all states had followed suit, with plumbing codes enshrining basic standards for His and Hers.

Fear of change was once again in the air, when toilets returned as symbols of vulnerability for young women. “Will the white girls be forced to take their showers with Negro girls?” asked a prosegregation Arkansas newspaper ad in 1957, before going on to peddle false medical claims.

Decades later, the bathroom battle shifted to feminism, the next frontier of social change. The specter of unisex stalls became a weapon for opponents of the Equal Rights Amendment, a proposed constitutional change to ban discrimination based on sex. Over the objection of legal scholars, anti-ERA activists renamed the proposal the Common Toilet Law. One activist in New York in 1976 even dressed as a unisex outhouse, with the words his and hers crossed out and replaced by theirs.

the specter of a sexual predator abusing transgender-friendly laws continues to frame the debate. Conservatives in Houston successfully overturned a city equal-rights ordinance in 2015 with a ballot measure passed after television ads re-enacted a hypothetical scene in which a faceless man barges in on a schoolgirl in a bathroom stall. “No men in women’s bathrooms” was the simple and effective campaign slogan.

the discomfort can go both ways. Since March, a sign has been posted outside the locker room at a New York City parks-department swimming pool on the Upper West Side of Manhattan. It says that “individuals cannot be asked to show identification, medical documentation or any other form of proof or verification of gender” and that anybody “who abuses this policy to assault, harass, intimidate or otherwise interfere with an individual’s rights” can be prosecuted.

In late April, when a girls’ swim team encountered a bald person with facial hair and a waist towel leaving the ladies’ shower, they brought their concerns to the swim coach, according to Ellen Vandevort, a mother of one of the girls. The coach suggested that they use the family changing room instead, and an employee at the facility later told TIME that the individual in question appears to present as a man. “Our hands are tied,” the worker said, which is not exactly true. Anyone can report concerns to police if there is even suspicion of criminal intent or wrongdoing.

At the Republican National Committee, there is hope that the issue could mobilize voters in November. “People are certainly talking about it, every meeting I am going to,” says Chad Connelly, the RNC’s director of faith engagement. “I think it’s the whole government-intrusion idea, trying to take over something that ought to be decided at the state level.”

Though all bathrooms are not accessible, there remains an official recognition of gender difference that was unthinkable when the parents of these students went to school. “The bottom line is that each student needs to feel secure and comfortable in the school that they’re going to attend,” Ellspermann says. “We can’t leave out the marginalized students.”

Never mind the fights to come. That sentiment alone is a sign of how much our nation has already changed.

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