More than 30 years ago, conservatives managed to defeat the proposed Equal Rights Amendment to the Constitution, which would have added "sex" to the Fourteenth Amendment's guarantee of equal protection, by frightening women into believing that it would outlaw separate bathrooms for men and women. In the years since, the courts have effectively done what Congress couldn't, prohibiting discrimination in virtually every aspect of American life — except, of course, bathrooms, which never were really at issue.
Then, as now, most establishments provide separate facilities for men and women. Those that don't — airplanes being the most familiar example — provide "restrooms" that can be used by both sexes. In addition, "family restrooms" have sprung up so that anxious mothers of little boys no longer have to choose between dragging our sons into the ladies' room ("I'm not a lady," my son used to complain) and sending them alone into men's rooms and then patrolling the exit.
I thought the bathroom wars were over, but I was wrong.
Where should a fourth-grader who is biologically a boy but identifies as a girl go to the bathroom?
In Stafford, Va., the school board, reacting to outraged parents, recently overturned the decision of a local elementary school that would have allowed the fourth-grader to use the girls' room. According to news reports, parents were afraid that letting this child use the girls' room would invite predators to prey on vulnerable children. "We have now opened the door for any predatory individual — student, teacher or anyone in between — within our school system to claim the gender identity to enter the restroom or locker room of the opposite sex to prey upon our children behind closed doors," one parent reportedly claimed. At the meeting, a man who identified himself as the girl's father said he once agreed with such views, until his child changed his mind. "She's a very special person. I only implore of all of us as we move forward that we don't trade understanding for fear and that we don't trade misconceptions for hate."
No such luck in Stafford, where the local board voted 6-0 to force his daughter to use the boys' room.
Letting a fourth-grader who identifies as a girl use the girls' room will not lead predators to prey upon our children. In debates like this one, the fictitious would-be predators are almost always gay. (Remember the debates about barring gays from teaching, even though all of the evidence showed heterosexual abuse to be a far greater problem.) I suppose it could be seen as a step toward equality that at least here the would-be predators have to be heterosexual. One step forward, a dozen steps back.
Is it worth pointing out that girls' rooms provide individual stalls? Or that teachers use their own bathrooms? Or that most schools don't allow "anyone in between" teachers and students to enter school buildings?
Many of us grew up in a world that we thought was divided very simply between girls and boys. But we were wrong. The experts can explain it better than I, but some children are born with the "wrong" bodies. I can't begin to imagine just how difficult and painful that can be. But school should be a safe place. If other girls — or more likely their parents — aren't comfortable with that, then they need to learn some valuable lessons, not let ignorance reign, as it did in Stafford.
Equality demands respect for individual differences. If anything is an invitation to abuse, it is forcing a child who thinks of herself as a girl and dresses as a girl and holds herself out as a girl to use the boys' room.
(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)
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