New Frontiers in Gendered-Bathroom Battles

The U.S. Department of Housing and Urban Development (HUD) is finalizing a rule stipulating that homeless shelters must allow transgender women to stay in women’s areas and transgender men to stay in areas designated for men—setting off “a firestorm [that pits] LGBT groups against religious organizations that operate many homeless shelters,” The Hill reports. Meanwhile, the Obama administration is introducing a rule guaranteeing that transgender people can use bathrooms consistent with their gender, rather than biological sex, when in federal buildings. The new regulation, which will be posted in the Federal Register this week, covers 9,200 properties owned by the General Services Administration (GSA), including federal courthouses, Social Security offices, and other spaces across the country.

BuzzFeed News first reported on the federal-buildings regulation, after obtaining a draft notice outlining the changes. The notice, circulated to federal agency heads on August 8, states that “federal agencies occupying space under the jurisdiction, custody, or control of GSA must allow individuals to use restroom facilities and related areas consistent with their gender identity.” BuzzFeed notes that “the regulation builds on and reinforces a growing body of interpretations by the Obama administration to protect transgender people under longstanding civil rights laws.”

In the past several years, federal agencies have begun holding that bans on sex discrimination—instituted to address disparate treatment of women—also cover discrimination based on sexual orientation, gender identity, and/or gender expression. That is, under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, LGBT discrimination is sex discrimination, they say. My colleagues Scott Shackford and Robby Soave have written extensively about these developments, including the Equal Opportunity Commission (EEOC) ruling that applied the Civil Rights Act to sexual orientation, Obama’s support for the “Equality Act,” the states fighting federal rules on trans high-school kids, and why Title IX is a bad tool for extending trans student rights.

The trouble is that Title IX has also been used by the Obama administration to hold that basically any sexuality-related statement or action that makes any college student uncomfortable counts as sexual harassment, thereby creating a “hostile” educational environment and inviting the federal Office of Civil Rights to intervene. Under this same statute, the feds say transgender high-school students must be allowed to use bathrooms and locker rooms consistent with their gender identity. But what if sharing a bathroom with students born male makes biologically female students uncomfortable? They, too, would ostensibly have a claim under Title IX.

The homeless-shelter situation puts us in a similar bind, with the interests of transgender homeless people and some religious shelter owners in conflict. It makes little sense, to me, to house someone who identifies, looks, and lives as female with male residents, or vice versa. But, as The Hill points out: “Religious organizations see things differently.” And in trying to do what’s right for trans homeless people, the government is poised to force religiously-run shelters to operate in ways that violate owners’ convictions and consciences—thus opening itself up to another wave of lawsuits. Catholic Charities USA and the Association of Gospel Rescue Missions have both raised concerns with HUD already.

“It makes no sense at all,” Tim Wildmon, president of the American Family Association, told The Hill. “Good, Christian organizations that are trying to help people do not need Washington dictating their bathroom or bedding policies.”

Though the HUD rule isn’t final yet, a draft says homeless shelters must ignore “complains of other shelter residents” who feel uncomfortable being housed with someone transgender. “It is likewise prohibited to deny appropriate placement based on a perceived threat to health or safety that can be mitigated some other less burdensome way.” The rule would only apply, for now, to homeless shelters that receive some form of federal funding.