Status Quo Does Not Make Right

Although the plaintiffs are expected to keep fighting, for now, it's official. The U.S. Third Circuit Court of Appeals has ruled that there's nothing wrong with the Boyertown Area School District policy that treats transgender boys (those boys designated female at birth) as boys and transgender girls (those girls designated male at birth) as girls. There is nothing "hostile", "threatening", or "humiliating" about it, much less illegal or unconstitutional, and the judges seemed unimpressed by all attempts to argue otherwise. Judge Theodore McKee rejected repeated appeals to the status quo in particular, referring to Brown v. Board of Education and retorting, "These types of cases wouldn't happen if the answer was always, 'Go back to the status quo.'"

The bulk of court rulings in recent years agree. "The court is joining a growing consensus of courts that recognize the inclusion and common humanity of transgender students", noted Ria Mar, an attorney with the American Civil Liberties Union of Pennsylvania, which helped argue the case. As Mar points out in an editorial, currently available on the Philadelphia Inquirer's website:

Changing clothes in front of classmates of any gender can be uncomfortable. Modern educators understand this. That's why many high schools, including Boyertown's, have recently created spaces to change that truly are private, including individual stalls and curtained areas within common spaces as well as single-user restrooms. These spaces are available for any student who chooses to use them for any reason. But the students involved in the lawsuit say they do not want to change in these private areas. Instead, the lawsuit claims a constitutional right to undress in front of other students—just not students who are transgender.

That's a fundamental misinterpretation of what privacy means.

I said as much when I first commented on the case:

[T]he possibility of any of the other dozens of students in the room eyeing [initial plaintiff] Joel [Doe] simply doesn't concern him, somehow. It would be easy enough to infer that, but I don't even need to—the official complaint states it outright: "Joel Doe, Mary Smith, Jack Jones, and Macy Roe do not object to students of the same sex using private facilities with them, and welcomes them no matter how they self-identify their gender, and they have no expectation of privacy from such students" (emphasis added). Based on that, the school could throw [transgender boys] T and Aidan in with the girls, and even if they spent the whole time gawking, none of the plaintiffs would care. And if some genetic male—cis boy, trans girl, nonbinary, gay, straight, bi, ace, or whatever—were staring at Joel the whole time he was changing, or if dozens of them crowded around to watch, that would be no cause for complaint either. They could even film the whole thing if they wanted to, and their superficial anatomical similarity to Joel would make that perfectly acceptable to him. That is what "no expectation of privacy" means, isn't it? Yet the plaintiffs do have a problem with people simply going about their business and using the facilities appropriately without paying undue attention to anyone or causing any trouble, solely because of certain biological differences that they're never going to have cause to observe or otherwise interact with in any way. Call me crazy, but if you're genuinely interested in protecting your, or anyone else's, personal privacy, this not only makes no sense but is completely backwards.

As Mar has stated, "the solution is exactly what the school has done here—to make private arrangements available to all students and not to banish transgender students and send the message that who they are is unacceptable."

If you feel uncomfortable—for whatever reason—changing in front of other people—whoever they may be—you use a private stall. It really is that simple.


Of course, not everyone is happy about this, otherwise there wouldn't have been a lawsuit in the first place. "Here we actually have a policy that's inviting the very conduct we're concerned about", claimed Randall Wenger, an attorney from Alliance Defending Freedom, which news outlets keep neglecting to point out is not merely conservative but a notorious anti-LGBT hate group. It's unclear what conduct he's referring to, since no misbehavior by anyone of any gender has so much as been alleged. Maligning transgender people with inaccurate claims about them and the threat they supposedly pose, not to mention suing the school district over a perfectly reasonable policy, are the most concerning conduct I've heard anything about in connection to the case. Those presumably aren't what Wenger meant, given that ADF has taken lead roles in both activities. Which is a large part of what makes it a hate group.

Alexis Lightcap, a senior at the school, has also vocally objected to the outcome. Like Mar, she has written an editorial that is currently available on the Philadelphia Inquirer's website (the site, incidentally, has links between both editorials and the news article, presumably in the name of balance). While I could probably find something to critique in every paragraph if I tried, let's just stick to some of the lines that particularly stood out to me.

I was a junior in high school when I ducked into the girls' room at school one day to find ... a boy [sic]. [ellipsis in original]

From the sound of that, she's presumably the plaintiff known as "Mary Smith", whom the lawsuit purports was distressed when she "saw a male student washing hands in the sink". As I've already commented, she's never offered any explanation as to why she assumed the student was male, much less how something so innocuous—"almost painfully mundane", in Mar's words—could disturb her so deeply. Honestly, I'd be more upset to see a student neglecting to wash their hands, whoever they were.

A boy at our school was in the middle of changing clothes in the boys' locker room when he looked up to see a girl [sic] changing her [sic] clothes nearby.

Allegedly. Other available facts surrounding the case suggest that while the trans boy he implicated does exist, the incident as described almost certainly never happened. Even if it did, though, what was he doing watching other people changing? If he was so uncomfortable, why didn't he opt to use one of the more private options that the school has provided? And what, exactly, is supposed to be the big deal, anyway?

How natural would you feel, having someone of the opposite sex standing next to you—or your child—while you change clothes or go to the bathroom?

How natural do you feel guiding two tons of metal along a paved surface in speeds far exceeding the fastest Olympic sprinters? How natural are things like modern medicine, food distribution, and heating and cooling? Let's not forget computers and the Internet, either. People do things that are far from "natural" all the time, typically without a second thought. To paraphrase a comment I vaguely remember seeing elsewhere, if your primary concern is what's natural, feel free to go live in the woods, hunt animals with a pointy stick, and die of dysentery before reaching middle age.

The question shouldn't be how natural you feel, but why you feel any discomfort that you do, and whether that discomfort is in any way justified or merely springs from prejudice. Discomfort can even be productive. So while whether you feel natural in any given situation may be worth considering, it doesn't mean much on its own.

According to the people on the blogs and at the microphones . . . [we] must be bigots, or religious extremists . . . I guess it's always easier to label people than to think about where they're coming from.

I've thought plenty about where she and the others are coming from. All signs point to a place of fear and ignorance. While I feel more pity than scorn for them, that doesn't make their attempts to curtail other people's rights for the sake of their misplaced sense of comfort any more acceptable.

Aidan DeStefano, a young trans man who recently graduated from the school, had similar thoughts. "I understand what they're saying, but until they step into my body they have no idea what they're talking about."

On the other hand, I'm not convinced that she has thought about where she's coming from. I'm reminded of when Education Secretary Betsy DeVos called it "hurtful" to be "criticized for not upholding the rights of students" despite her track record of failing to uphold the rights of students, or when White House Press Secretary Sarah Huckabee Sanders, who at best has a strained relationship with the truth, complained that being considered a liar "bothers" her. Likewise, although Lightcap's motives remain unknowable, her words and deeds are entirely consistent with bigotry and religious extremism. All three of them might want to reconsider what they're doing if they can't handle criticism that befits their actions.

[I]t's not like I don't know what it's like to be different, or can't understand someone who has a hard time speaking up for their rights.

Good for her? I'm not sure how that's in any way relevant, though, unless...

But that doesn't make me any more comfortable having my privacy invaded or knowing the bathroom door is open to anyone who wants to come in.

...it's just a ploy to give the impression of empathizing, while avoiding the messy details of attempting to actually empathize. I guess it's always easier to label people than to think about where they're coming from.

Once again, I've yet to find any explanation from her of how she feels her privacy has been invaded. There's no privacy involved in washing hands. The bathroom door, similarly, is physically no easier to open than it ever was, and as far as authorized access goes, "open to anyone" remains a peculiar way to describe a policy that only applies to a handful of people.

I don't have a problem sharing a bathroom with someone who identifies as transgender—provided they are the same sex I am.

Which excludes transgender women and girls, but includes transgender men and boys, such as DeStefano. Her statement is specifically inviting certain boys to share the bathroom with her. This is coming from someone who also said, in a live press conference after the decision was announced, "It's common sense that boys shouldn't be in girls' locker rooms, restrooms, and shower areas". Basically, all she's doing here is denying that "identifies as transgender" is in any way meaningful, as though such an identification were necessarily delusional if not outright malevolent. She apparently also believes that she can accurately sex anyone on sight.

And this kind of attitude is already causing problems, for a number of people who are not transgender as well as for many who are. Take, for example, Jessica Rush, who was followed into a restroom and confronted (by a man, no less) for not looking sufficiently unambiguously womanly. Or Jessie Meehan, who was told she had to use the men's room in a Walgreens after being deemed too masculine. Or Aimee Toms, who was assumed to be transgender and harassed in a Walmart restroom apparently due to her pixie haircut. Or the unnamed woman who was dragged out of a ladies' room by (male) police officers, despite having friends there to vouch for her.

It shouldn't come as a surprise that so many cisgender woman are affected, considering how relatively rare trans people are. However many trans women have a deep voice, or conspicuous muscles, or whatever other observable trait that might lead people to believe they are trans, there are bound to be at least as many non-trans women with the same trait. Yes, even facial hair (a common symptom of polycystic ovary syndrome).

Not that correctly identifying a trans woman makes this sort of behavior any more appropriate. Consider the California congressional hopeful who obliterated any pretense of caring about privacy by publicly livestreaming from a restaurant bathroom while she harassed a presumably trans woman who was out of sight and out of relevance in one of the stalls. Would there have been an issue at all if she had just gone about her business and simply used another stall, like most people would have done? Would there have been an issue at Boyertown if the purportedly distressed students had done much the same?

Besides, what common sense says, as far as I'm concerned, is that if privacy is really so important, the facilities ought to be sufficiently private that it simply doesn't matter who uses them. As I understand it, that's essentially what the school is making an effort to do. Trying to police who goes where, though, just creates additional problems while doing nothing for privacy itself.

I do have trouble with a policy that says anyone who's in an opposite-sex mood today can stroll in and observe me in my intimate moments—

It doesn't say that. It doesn't say that anyone can observe anyone in any intimate moments. That has nothing to do with anything, never has, and never will, regardless of how popular it may be as a red herring.

The rest of the editorial goes on in much the same vein, mostly in a positive form of ad hominem that attempts to win sympathy for her position by framing her as sympathetic, without doing much of anything to support the position itself.

In comments outside of the editorial, Lightcap has similarly claimed, "Instead of listening to my concerns, they made me feel like I was the problem for feeling uncomfortable, unsafe and vulnerable with a boy [sic] in the bathroom." Having concerns, or feeling uncomfortable, unsafe, or vulnerable, do not make a person a problem. However, while these reactions may be real in the sense of being experienced deeply and sincerely, they do not reflect an accurate understanding of the situation (to paraphrase a line from Michael Kimmel in Angry White Men). Having unfounded concerns, or feeling uncomfortable, unsafe, or vulnerable when there is no genuine threat, typically do mean that a person has a problem. Still, that's normal enough. I've never met anyone who didn't have some issues to get over. Therapy and introspection may be able to help.

Having issues wouldn't be such a problem, though, if more people were willing to keep these issues out of other people's business. It's when they wield their hangups against other people, rather than acknowledging their issues as being theirs to deal with, that they become the problem. Just as Lightcap herself said at the press conference, "Every student matters"—which necessarily includes the transgender ones—"and a school should put our privacy, safety, and dignity first." By providing private spaces for everyone, doing nothing to compromise safety, and upholding the dignity of transgender students by recognizing them as their actual gender, the school has done exactly that.

What will it take for the plaintiffs to do the same?