Today, the U.S. has civil rights laws that prevent all these and most other forms of discrimination. These laws were not easily won: some people lost their lives and many were beaten ànd harassed. Since the Supreme Court declared segregation unconstitutional beginning in 1954, the consistent trend has been towards broader definitions of civil rights. Since 1954, there has never been a president or cabinet level federal official that publicly advocated reversing progress on civil rights.
Welcome to the frightening new times of President Trump and his backward-facing attorney general, Jeff Sessions. This team declares that it’s appropriate for transgender people to be denied basic human rights, such as using the bathroom where they feel right and fit in best. He and some of his supporters, and some state governors and legislators, believe it is acceptable for certain groups of people to have rights only in those states where legislators choose to permit those rights. Most people, and most legal experts, believe that the idea that civil rights can be defined by state legislators and courts rather than by national law died in this country in the 1960’s with the end of racial segregation. Searching for parallels to the Trump administration’s reversal of the Obama administration directive that there should be no anti-trans discrimination in public schools and other federally-funded facilities, I think of the race-segregated schools, water fountains, store entrances, and train cars of the American South. These continued until segregation of all public U.S. facilities was made illegal in the 1950s and 60s. There was a similar situation in apartheid South Africa until the struggle for one-person-one-vote was won and apartheid collapsed in 1994. There also was was a brief period in the 1990s when U.S. children with HIV were denied access to schools. And the long period when across-race marriages, and later same-sex marriages, were legal only in some states. A car trip crossing a few states could mean repeatedly losing and regaining legal marital status, and with it, losing the right for a couple to share a room. All of these things seem like a shameful part of the past to most Americans.
It seems sensible to ask, since some schools deny transkids the right to use appropriate same-sex bathrooms but offer them a separate single-sex bathroom, why don’t they shut up, be grateful, and use that designated bathroom? There are several legitimate reasons. Offering access to a single bathroom in a large facility such as a high school does not give even close to equal access. In the current movie Hidden Figures, a true story, the black female heroines must walk a half mile each way to get to a “colored” bathroom. In a scene many applauded, their boss eventually tires of their long breaks, takes the “colored” and “white” signs down and declares, “From now on at NASA, we all pee the same color!” Besides unequal access, unequal treatment has a deeper, more insidious effect. Treatment is never just unequal – it is always preferential for the dominant group. Different treatment of a minority group serves to highlight their difference and increases harassment. Most trans people, children and adults, want very much not to stand out. Those who have suggested that people might transition gender to get attention have it all wrong. Most trans people have been feeling out of place for much of their lives and want nothing more than to be invisible in their self-identified gender. That is why, of course, most trans people are not distinguishable from other members of their gender. Therefore, they are already using the t“wrong” bathroom, the one where they attract no attention – it is unnecessary and unsafe for them to do anything else.
The people most likely to be in trouble with this reversal of legal protections are those who, due to genetic accidents or because they only recently started transition, cannot blend invisibly into a group of other people of their self-identified gender or with people of their genetic sex. These are the people who day by day must make uncertain choices about what is the safest thing to do. Some just don’t leave home for any longer than they can wait to use a bathroom. Is it appropriate to strip these very vulnerable people of their rights because some people mistakenly think they are dangerous?
We can be grateful for our tripartite system of government, and hope that the Supreme Court will balance out the foolishness of our current executive branch. Until then, be careful out there, all right?