The Bathroom Bills Controversy: “The Biggest Issue in America Since Prayer was Taken Out of Schools”


After dramatic gains in this country and elsewhere in the field of gay and lesbian rights, transgender people and allies are properly pressing for the recognition of their human rights too. And as always those struggling for progressive social change meet with fierce reaction.

But maybe the confrontation between some state officials and the Justice Department over the curious topic of public restroom access—and particularly school access—is providing an education moment.

Surely it’s a positive thing when Attorney General Loretta Lynch informs the state of North Carolina that the Justice Department is filing a federal civil right law suit against the state’s “bathroom law” which would require everyone using public restrooms in the state to use the one for the gender they had at birth, as indicated by their birth certificate.

And it’s great that the Obama administration has issued a directive notifying public school officials they must allow transgender students’ use of the restrooms and lockers appropriate to their gender identity.

It’s excellent that Bruce Springsteen and other celebrities condemn the “bathroom bills” and stand up publicly for the rights of transgender people. And it’s not a bad thing when the most backward forces in society howl in protest at the directive, exposing their intolerance, because that actually helps to generate awareness and debate.

Among the most backward— Texas Lieutenant Governor and former right-wing radio host Dan Patrick—calls the directive “the biggest issue facing families and schools in America since prayer was taken out of public schools.” So Patrick orders Texas schools to disobey, even as Obama threatens to withhold funds from schools that do not comply. “He can keep his 30 pieces of silver,” snarls the lieutenant governor. (He alludes of course to the payment made to Judas for handing over Jesus to the authorities. The implication is that Texas is with Christ and Obama with Satan.)

What Obama’s trying to do, Patrick warns, is “to force girls showering with boys and force 8-year-old girls to have to endure boys coming into their bathroom…” That sounds pretty awful but is also hard to envision. School showers are becoming a thing of the past due to massive cuts in physical education, and while it’s conceivable that a transgender girl with a penis would ask to shower with the other girls, or a transgender boy with a vagina would want to shower with the other boys (and that this might be a healthy learning experience for all concerned), isn’t it more likely the transgender person would opt to shower separately? And be allowed but not forced to do that?

AP reports that “many public schools already are balancing the civil rights of transgender students with any concerns that classmates, parents, and community members might have. The U.S. Department of Education is drawing on those practices to guide other schools as they work to comply with Obama’s directive…” A California school district superintendent declares, “This is absolutely not about a student on a day-to-day basis saying, ‘Today I’m a boy, tomorrow I’m a girl.’ That has never happened. By the time these students are asking for our help, they are presenting in all aspects of their life as that gender.”

And what does Patrick mean by girls having “to endure boys in their bathroom”? Restrooms for women and girls have private stalls. So, say you’re a girl washing your hands at the sink and someone walks in the door. Looking like a girl, she he heads to a stall, does her business, emerges, washes her hands and leaves while other girls trail in and out, oblivious to her “biological gender.”

What has been “forced” upon other girls? What have they had to so traumatically “endure”?

No, this is not about protecting schoolgirls from nasty boys cross-dressing to gain entry to the girls’ washroom. At the base of the campaign to deny transgender people the right to use the restroom designated for their identity gender is simple fear mongering. The idea that straight, biologically born boys, motivated by voyeurism or worse, would don female attire to sneak into the girls’ room, risking expulsion and arrest, to get their jollies just makes no sense.

Boy’s rooms and men’s rooms are, due to their lines of urinals, more amenable to voyeurism, harassment and even sex. And, as the Sen. Larry Craig scandal of 2007 brought to everyone’s attention, there is the phenomenon of “tea trade”—gay sex in (or under) men’s room stalls. But that’s a whole separate question. And no one is even raising the prospect of transgender boys seeking access to boys’ rooms in order to check out other boys’ privates at the urinal—at least any more than other boys do.

So say a transgender boy enters the boys’ room. If he has fully transitioned he might use the urinal. In any case there is the stall option. Either way, none of the other boys are threatened in any way or even likely aware of the boy’s birth gender. Properly educated, they wouldn’t even care.

The central purpose of the “bathroom bills” proposed in a number of state legislatures seems to be to humiliate and harass the transgender person. Proponents argue they are not against transgender individuals. But are they not conveying to them the message that their gender choice is wrong, shameful, and illegitimate and will not be recognized?

Four bills have been filed in Texas, making it a crime for people to enter a restroom or locker room not designated for their birth gender, and allowing bystanders to sue transgressors for up to $ 2000 plus compensation for causing them “mental anguish.”

Such laws tell the transgender male: “Even though you look and act like a man, you need to go to the women’s room…and then cope with any startled reactions from the women there.” In other words, at least in Texas, it would be better for a bearded Chaz Bono to use the ladies’ room (where he would surely be noticed) than to use the men’s room (where he would not).

What could possibly result from that? Must he tell the bemused females, “Don’t worry, I was born female. So the law says I need to pee here.” That seems genuinely traumatic and cruel. It’s rooted not in reason and compassion but pandering to the Christian right. Sen. David Curtis of North Carolina sums up their mentality: “We have rules in our society, and it’s just one of the rules.”

But actually there are few rules preventing a transgendered or even a cross-dressing person from using the lavatory of their choice. It is happening every day drawing no apparent attention. In Massachusetts, 0.5% of the population according to one study is transgender. That’s over 300,000 people, many using public restrooms daily.

But people typically don’t pay much attention to fellow public restroom visitors. (One exception is cops there to bust people soliciting sex. In 2007—the same year Sen. Craig got into trouble in the Minneapolis-St. Paul airport—Florida congressman Bob Allen, then co-chair of John McCain’s presidential campaign, was arrested in a men’s room in a Florida park for soliciting sex from an undercover cop.)

I personally could care less if the dude at the next urinal was born with a penis or undergone phalloplasty. Why would the presence of the one bother me any more than the other?

I would care a lot, though, if the plan Curtis supports means the construction of new rules to enforce the draconian intention. How do you police it and prevent violations? How do you procure the birth certificates? Should people be strip-searched by (gender-appropriate) cops at the door, or asked to walk through an X-ray scanner designed to identify genitalia? (No, that wouldn’t help, since a fully transitioned transgender person would appear to have the gender he or she claims.)

You could issue a statewide or national “gender at birth” (GAB) card, based on the birth certificate, and install turnstiles at the doorways of every public restroom that will only admit users “born” to use it. But these are very expensive propositions and are of course, very stupid.

Versus the fear mongering, we need education. And it should start young. You don’t have to teach first-graders the term “gender dysphoria,” but you can tell them at that stage—just as you’re telling them that some kids have two moms, or two daddies—that some people born girls have become boys, or born boys have become girls, because that felt right for them. No need to go into detail; just begin informing of them something true.

To those who say, “That will just put ideas into their heads, and make some want to change,” I reply: You do not understand much about human sexuality. There are five-year-old boys quite certain they are girls without anyone encouraging them. The idea that a boy comfortable with his gender might be stimulated to want sex change once he knows it can happen is specious. Just like the idea that kids told it’s okay to be gay are being lured into “that lifestyle” as part of the “homosexual agenda” of active recruitment.

By middle school, certainly, gender dysphoria should be explained in some detail. An eighth grader is surely able to understand the American Psychiatric Association’s assessment that its “critical element…is the presence of clinically associated distress at the condition.” And perhaps to feel empathy for people in this condition.

By high school, student might be assigned to view a film or two sympathetically depicting transgender people. There are so many to choose from, and probably available online, including Boys Don’t Cry (1999), The Crying Game (1992), Ma vie en rose (1997), The Danish Girl (2015). And I have a suggestion for a deep historical perspective.

I’ve used in university classes a twelfth-century Japanese literary work by an unknown aristocratic author entitled Torikaebaya (loosely translated “Were they switched?”), translated into English by Rosette Willig as The Changelings: A Classical Japanese Court Tale (Stanford University Press, 1983). Students uniformly have found it fascinating.

In the novel, a high-ranking courtier has a son and a daughter by two different wives, close in age and very similar in appearance. (In this period, ideals of male and female beauty were not dissimilar.) The biological male Chunagon behaves like a girl from the beginning, while the girl Naishi no Kami behaves like a boy. The parents wisely accept the situation, allowing them to dress and act as they please. They see this condition as the children’s karma, caused by past lives; in other words they were “born that way.”

In time the two go to court, the transgendered male as a palace guard and the other sibling a lady-in-waiting to a princess. Nobody at court knows their biological gender.

Chunagon develops a close relationship with a young man named Saisho.

Saisho, aware that Chunagon has a sister somewhere, keeps asking to meet her although Chunagon doesn’t arrange this. Meanwhile Saisho looks at his friend, repeatedly thinking: “If only he were a woman!” (This expression occurs very often in tenth and eleventh century Japanese fiction, in situations where men feel a same-sex attraction they can frankly admit but probably not act on.)

In Saisho’s case, however, the man with the longing gaze acts upon his desire for his friend—as substitute for his sister—and tries to force himself on Chunagon. He immediately notices, of course, that his friend has a woman’s body—and is delighted by the discovery as he has his way with his hapless friend.

The mortified Chunagon becomes pregnant, fleeing from the capital to the surrounding hills where he gives birth at the home of friends: a reclusive courtier who had lived in China and brought back with him his two half-Chinese daughters. The father keeps his girls away from court fearing they will be shunned for their ethnicity. Perhaps for their own reasons sharing Chunagon’s sense of alienation from the status quo, they treat him with kindness. Meanwhile the princess that Kami no Naishi waits upon becomes mysteriously pregnant.

The conclusion of the story will not satisfy everyone. In the version of the tale that survives, the siblings agree (in the home of the noble recluse with his half-Chinese daughters) to switch roles. Kami no Naishi  assumes for the first time a male identity, marrying a different imperial princess. Chunagon returns to court—now as a woman—and assumes the role of her sibling Kami no Naishi. (The princess doesn’t notice the difference, since the two look so alike.)

But Chunagon confesses the whole truth to the princess who had been impregnated by her lady-in-waiting, resumes a male identity, and lives with her as her husband. His old friend Saicho by the couple’s consent secretly sires children viewed at court as Chunagon’s.

This is all possible due to a supernatural event. It turns out a long-nosed goblin (tengu)  had mischievously switched the two at birth. But after embracing Buddhism he comes to regret his action and undo it.

In other words, while the work depicts gender dysphoria sympathetically—with some psychological realism—it also depicts the union of biological gender with gender identity as the ideal solution to the condition. But the fact that the siblings ultimately adjust to their expected gender roles is only possible due to supernatural intervention.

It’s in any case a gripping tale that, while including some comic elements, is a psychological treatment of the transgender phenomenon.

As the Princeton Companion to Japan’s Literature puts it, the work “suggests that there must have been men and women of the time who wondered what it would be like to be of the other sex, and perhaps some who would even have liked a try at change. The work goes no small distance in showing how society defines maleness and femaleness on bases termed sexual but actually social.”

(That alone makes it objectionable to some moderns. The Meiji era critic Fujioka Sakutaro (1870-1910) called it “filthy and repulsive–much of it unreadable.”)

Again, this is a twelfth century work. It is the product of an aristocratic society that was universally literate, men and women included, who prolifically produced literary works including the world’s first psychological novels, such as The Tale of Genji.  There is nothing comparable to Torikaebaya in western literature dealing with transgender people. So I’d put it in the high school curriculum, and resist protests from parents sharing Fujioka’s view.

With proper understanding, we might even come to the point where Patrick’s hypothetical 8-year-old girl might shower after basketball practice with other third grade girls—even one with a penis—and find nothing unusual in that. But that is the bathroom bill sponsors’ nightmare and sure sign the End Times are here.

In Japan, you know, unisex restrooms have been operating for decades. I don’t mean one-toilet restrooms available to anyone. I mean places where a man might stand at a urinal while a woman enters and heads for a stall. As blogger Richard Seaman notes, describing one at the Himeji train station clearly marked with male and female symbols: “In Japan…you might come across a public unisex toilet, complete with urinals! Women using the toilets are supposed to just ignore the men!”

Neither resents nor particularly notices the other. It’s a practical use of high-rent space and not a controversial issue. I wonder what my rational, sophisticated Japanese friends think as they read about this new strange battle in America’s culture wars.

Gary Leupp is Emeritus Professor of History at Tufts University, and is the author of Servants, Shophands and Laborers in in the Cities of Tokugawa JapanMale Colors: The Construction of Homosexuality in Tokugawa Japan; and Interracial Intimacy in Japan: Western Men and Japanese Women, 1543-1900 and coeditor of The Tokugawa World (Routledge, 2021). He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He can be reached at: