Responding to a Defense of the Bathroom Rule


The Washington State Human Rights Commission recently passed a rule requiring all schools and public accommodations, including businesses, to allow people to access locker rooms, showers, and bathroom facilities based on the gender identity or gender expression they claim.

The public’s response to this rule has been significant.

Legislators have reported receiving as many as 1,000 phone calls and emails on this issue.  While legislation to overturn the rule has been introduced in both the House and Senate, some legislators have attempted to defend both the rule itself and the process through which it was enacted and many of you have sent us a copy of their response.

The letters we have received from legislative offices who are supportive of the new rule generally make the exact same points. The following letter from Rep. Laurie Jinkins is a good representation of these responses.  I have included my response to her response, just in case you find that interesting.

Thank you for contacting me about rules that the Washington State Human Rights Commission recently adopted to provide clarity about how Washington law prevents discrimination against transgender people.  I appreciate hearing from you.

As you may know, Washington passed a law in 2006 that provides protection for transgender people against discrimination in employment, housing, and places of public accommodation.  Since that law was passed 10 years ago, transgender people in Washington have been able to use restrooms and locker rooms that match their gender identity.

Nothing in Washington’s 2006 law changed the fact that separate facilities exist for men and women.  The law allows a person who has undergone or is undergoing gender transition to use the restroom or locker room that matches the gender they live every day.  Nothing in the law or in the adopted rules changes the fact that it is illegal to enter a restroom or locker room to harm or sexually harass people, or to invade their privacy.

This is an attempt to make the argument that the new rule by the Human Rights Commission changed nothing and that this debate actually took place in 2006.  This is false.  When sexual orientation was added to the non-discrimination law in 2006, gender identity and gender expression were not a part of the conversation.  Those pushing to include sexual orientation in the non-discrimination law spoke exclusively about making sure that people didn’t get fired for being gay and making sure that people could visit loved one’s in the hospital.

The reason they didn’t hold a press conference to announce how wonderful it will be when people with a penis can undress in the women’s locker room is because, if they had, the law would not have passed and they knew that.

Many other states, counties, and cities across the country have adopted laws that are similar to Washington’s.  At last count, 17 states and more than 200 cities across the country have passed and successfully implemented such non-discrimination laws, with no increase in public safety incidents.  Under federal law, the U.S. Department of Education has worked to ensure that transgender students are able to use restrooms and locker rooms at school that align with their gender identity.  Additionally, the federal Department of Labor issued guidelines in June 2015 that require employers to offer restrooms and locker room facilities consistent with an individual’s gender identity.

It is true that the federal government threatened to pull funding from a local school district in Chicago unless they allowed a boy to shower in the girls locker room at school.  It is also true that other states have passed laws they claim are aimed at protecting people from being fired for their job while slipping in protections based on gender identity and gender expression. However, when the public understands that the issue is about bathrooms, locker rooms, and showers, they side with privacy and common sense.  Recently, residents of Houston, Texas voted 61-39 to repeal a citywide ordinance that would make all bathrooms and locker rooms accessible to anyone.

As to the Department of Labor’s guidelines…the fact that the federal government does stupid stuff does not require a state to do the same.

The rules recently adopted by the Human Rights Commission do not change Washington’s 2006 law.  Instead, the rules are designed to increase clarity and understanding about the requirements of the law.

As noted above, the public doesn’t believe they had this debate in 2006.   The fact that the public is outraged by these new revelations while the legislature is saying, “Whats the big deal, we did this 10 years ago” means one of two things: either the legislature was being deceptive about what they were doing 10 years ago, or they are being deceptive now.  Regardless of which is true, the public is owed an apology and a remedy.

The agency held four public meetings across the state – starting in 2012 – to receive public input about its plans to issue these rules. In May 2015, the agency publicly proposed the rules, and members of the public were able to provide comments on them, either in writing or at a public hearing that was held in June 2015.  The rules were finalized in November 2015.

In this video, Susan Ortiz, Executive Director of the Human Rights Commission, shines some light on this allegedly “open process.”  She said that the public notice of these meetings was given through the Washington State Code Reviser’s office website.  Raise your hand if you know who the Washington Code Reviser is?  Understandably, the public meetings were “not well attended.”

In addition, they had a one-month public comment period, also posted on the code reviser’s website, where people could submit comments.  She explained that “no one submitted anything.” When pushed, she qualified her initial statement with, “there was a few, so…”

Of course the only reasonable explanation for why they would have received no input on this issue from the public is that the public had no idea it was happening.

All of us, including transgender people, care about safety and privacy in bathrooms and locker rooms.  I understand that there has been confusion and concern recently about what implementation of these non-discrimination regulations means.  However, the experience that we’ve had over the past 10 years in Washington, as well as the experiences in many other places, show that non-discrimination laws and policies can be successfully implemented while upholding the safety of everyone.

I can’t help but believe that everyone involved sincerely cares about public safety.  But the public response is not due to “confusion” about what implementation of the rules means; rather, it is due to how troubling the rule is once clarity about it is reached.

The fact is that sexual predators have been caught pretending to be transgender as a way of gaining access to private spaces. Read about some of them here, here, here, and here.  And that was before the law notified them that they had a right to be there as long as they “identify” or “express” as a woman.

I am also encouraged that many organizations in Washington that advocate for survivors of sexual assault and domestic violence have expressed strong support for policies and laws that allow transgender people to use restrooms and locker rooms that match their gender identity.

If true, this only demonstrates that people with otherwise good intentions can have their judgment clouded by political allegiances.

Like many other people, understanding transgender issues has been a journey for me as well. While it can be difficult to understand someone whose shoes I’ve never walked in, I know it is not for me to judge.  What I do know is that transgender people often face isolation, singling out, and sadly all too often violence.  As we move forward with our concerns for protecting the safety of our youth and families, we must not vilify transgender people in the process.

Per usual, the argument closes with attempt to make you feel like a bad person if you don’t want naked men undressing next to your daughter at the local swim club.

Of course there are transgender people and they deserve to be treated with the same dignity and respect that we all do.  But it is not reasonable to demand the entire world forfeit their right to privacy as a way of making them feel more comfortable with their understandably unique challenges.  No one is vilifying transgender people.

If anyone is being vilified, we are vilifying those in our state’s leadership who are so beholden to political special interests groups that they would knowingly ignore the will of the public, create opportunity for those who would harm our children, and sacrifice the privacy of the public in furtherance of it.

Thank you again for contacting me and for your concerns about our community.

No.  Thank you.

You can call your legislators about this or any issue through the legislative hotline at 1-800-562-6000 or you can email them all at the same time by clicking here.

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