Detroit Mercy Law professor examines transgender rights

By Linda Laderman
Legal News

The right to use the bathroom that corresponds with a person’s gender identity garnered national attention when, in 2015, a transgender Virginia high school student was refused use of his school’s male-designated restrooms.
The student sued the district’s school board, in a case, Gloucester County School bard v. G.G., that will be heard by the U.S. Supreme Court this year.

But even before that case, America’s transgender population was challenging a system that denies them access to a bathroom best matching their gender identity.
“Transgender people have been struggling for equal and fair access to bathrooms and locker rooms that match their gender identity for decades, but major steps towards equal rights, and with it, attention to the issue by the general public, did not come about until about four years ago,” said Catherine Archibald, a professor at Detroit Mercy Law and the author of a soon to be published work in the Duke Journal of Gender Law & Policy.

The article, “Transgender Bathroom Rights,” examines the current court battles that surround the issue and contends that the federal government’s latest analysis of civil rights law is correct.

“The federal government recently interpreted federal law as requiring that transgender students be permitted to use bathrooms and locker rooms that correspond with their gender identity in schools receiving federal funding. In two separate lawsuits, 20 states have challenged the legitimacy of this interpretation,” Archibald said.

Archibald, who has written on the topic before, said while “new and exciting developments” in the area of transgender law encouraged her to write the article, she is keenly aware of the potential consequences of the challenges to the government’s ruling.

“There is a powerful backlash against increasing transgender rights. In November of 2015, voters in Houston, Texas repealed a local anti-discrimination ordinance that forbade discrimination based on gender identity after vigorous campaigning warned that the law would allow male sexual predators to follow little girls into girls’ bathrooms to assault them,” Archibald said. “These scare tactics are untrue – approximately 15 states and 200 cities across the country currently allow bathroom use according to gender identity, and crime rates inside bathrooms have not gone up as a result.”

And a North Carolina law that limits a person to use the bathroom of his or her biological gender is having a ripple effect across the country, Archibald said.

“Last year, North Carolina introduced and passed a law, the North Carolina Public Facilities Privacy and Security Act, commonly known as ‘HB2’ (House Bill 2), requiring bathroom use according to biological sex, as stated on a person’s birth certificate,” Archibald said. Though North Carolina lost millions of dollars as a result of the law, she says, several other states are currently considering such a law.

According to Archibald, the situation also contributes to a public health crisis affecting the nearly 1.5 million transgender Americans.

“In a recent survey of over 27,000 transgender adults in the [U.S.], 59 percent... reported that they have avoided using a public bathroom in the past year because of fear ...,” said Archibald. “This group has experienced and is still experiencing pervasive and tragic discrimination in our society. The attempted suicide rate among transgender people is nine times the attempted suicide rate of the general population. Fully 40 percent of transgender people have attempted suicide in their lifetime, compared with 4.6 percent of the general population.”

As a mother of 5-year-old twin boys, Archibald melds her written views with her parenting approach. “As much as possible I try to avoid gender stereotyping with my children or with others,” Archibald said. “When one of them came home upset because he was wearing pink and a classmate told him that boys shouldn’t wear pink, I explained that while some people think that certain colors are only for girls, or only for boys, in our family, any person can like and wear whatever color they like ...”
Archibald maintains that if policymakers acknowledge the permanent place of the transgender population in our culture they will better understand the threat discriminatory practices perpetuate.

“Transgender people are here to stay. About one out of every 170 people is transgender,” Archibald said. “This is about recognizing a group in our community, it’s not about an ‘us versus them,’ mentality. It’s about listening to real struggles and creating a society that includes everyone. When we do this we make everyone better.”