The desire for privacy of one’s naked body has pervaded most societies for millennia. With very few caveats, societies worldwide and through recorded history have sought to regulate whose naked body could be displayed where, and to whom. The most common privacy norm is that, in public or common areas, an individual should not expose nor be exposed to the naked body (or, at least, the genitals) of the opposite sex. Specifically regarding US law, Ruth Bader Ginsburg observed in a 1975 Washington Post op-ed that, for the sexes, “separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy” (emphasis added).
This norm does not appear to stem from mere fussiness on the part of individuals or society. Rather, it emanates from a worldwide heritage of managing how the sexes interact. Indeed, it would be difficult to identify a more personal, intimate, or universal norm of privacy.
Unfortunately, the policies regarding gender identity put forth by the Departments of Justice and Education in their recent “Dear Colleague” letter undermine this most basic form of privacy. This letter instructs public schools to allow students to use locker rooms, showers, bathrooms, and sleeping accommodations not based on biological sex, but rather based on their personal sentiment regarding their gender (their “gender identity”). While the difficulties of such a policy are numerous, these difficulties are severely compounded by the letter’s adherence to the ideology of expressive individualism in every aspect of the policy’s implementation. Sadly, this adherence removes numerous opportunities for community and family involvement and support for these minors.
Overview of the Dear Colleague Letter
The DOJ and DOE’s May 2016 “Dear Colleague” letter to public schools requires that students should be allowed the use of locker rooms, showers, bathrooms, and overnight accommodations that conform to their gender identity rather than their anatomy. Here are a few key points:
1. “. . . when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity . . . there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”
2. “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.” This includes locker rooms, showers, bathrooms, and sleeping arrangements on overnight stays.
3. Schools “must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students.” This “personal information” includes the child’s biological sex.
4. Schools are not allowed to disclose the biological sex of the transgender student to other students. They are also not allowed to disclose this information to school personnel who “do not have a legitimate educational interest in the information.”
5. Schools may, but are not required to, provide access to alternative facilities for those who do not desire to be in areas where they may be exposed to those of the opposite biological sex.
6. These above points still hold “even in circumstances in which other students, parents, or community members raise objections or concerns.”
Public schools that do not adhere to these points jeopardize their federal funding. The Departments of Justice and Education justify their positions on these matters based on Title IX, which prevents sex discrimination. Yet Title IX (drafted in 1972) does not include the concept of “gender identity,” and more than thirty years’ worth of precedent has established that Title IX should not be interpreted as prohibiting single-sex facilities for changing, showering, using the restroom, and sleeping arrangements.
Expressive Individualism: Rejecting the Community and Family
These new policies adhere closely to the ideology of “expressive individualism,” emphasizing individual self-expression as the primary moral good. According to this ideology, the community and family only serve a moral good inasmuch as they support individuals’ unrestricted expressions. For expressive individualists, it is dubious (even dangerous) to view community and family as entities that have interests that require consideration.
In every instance of potential conflict, the Dear Colleague letter requires that the transgender student’s desires veto the concerns of community and family. However, by attempting to provide these students with maximum latitude, the Dear Colleague letter, in reality, creates unreasonably difficult situations for them.
For instance, the letter instructs that the student’s parents need not be involved in, or even informed of, the school’s facilitating their child’s gender transition. The letter’s accompanying document of examples approvingly cites the District of Columbia’s guidance that “students may choose to have their parents participate in the transition process, but parental permission is not required.” But this places the child in a highly compromising and precarious position. Indeed, the likelihood of parents discovering their child’s school-facilitated gender transition is high, creating a potentially very negative reaction.
An advocate for transgender individuals recently explained the typical reasoning behind this provision by saying that “sometimes there are parents that are bullies.” But this position removes the community. Community mechanisms are already in place to determine whether or not a parent is a “bully” and is therefore unfit to obtain information about the child’s daily school activities (e.g., the Department of Child and Family Services). By not relying on these mechanisms, the letter’s policies assume that students’ desires outweigh parental consent and community involvement.
Requiring parental permission would ensure joint parent-child-school decision-making, creating a much-needed collaborative environment. Relying solely on the child removes those who probablly know the child best: his or her parents. And, for such a fundamental change in the child’s life, these are the individuals who should be consulted and relied on first.
Further, in determining a student’s gender identity, the letter instructs that no verification from medical or other professionals should be sought. In effect, the community is excluded from a discussion about what constitutes a community-accepted standard of gender identity. The letter endows the student with sole power to create the definition, increasing the likelihood of difficulties with the community. Indeed, when policies regarding areas created for privacy can be enacted “even in circumstances in which other students, parents, or community members raise objections or concerns,” an unnecessary tension is created. Battle lines, rather than compromises, are drawn up. Requiring community involvement allows for understanding on all sides and increased investment in the decisions.
Removing Privacy for Those with Diminished Autonomy
The scope of The Dear Colleague letter’s intrusion on basic privacy norms and laws is thrown into sharp relief when considering the low autonomy of those it affects. To understand this, it is critical to make the distinction between locations where individuals freely choose exposure (exposure of themselves and exposure to others) and public locations where individuals must have such exposure.
The fundamental difference is one of autonomy. While some may choose exposure at nudist beaches or on nude bike rides, there exist day-to-day situations when an individual, while in public, requires some exposure. This includes needing to change clothes, bathe, or relieve themselves. In these cases, a person’s autonomy to choose non-exposure is low.
To accommodate these needs, the public pays for and the government creates public facilities for these activities. For efficiency, some exposure in these public facilities is allowed: but the most basic and fundamental form of privacy (non-exposure to those of the opposite biological sex) is still ensured. Creating these common facilities provides respect for the privacy concerns of the vast majority of the world’s people. With the ethnic and religious diversity of the United States, these public facilities have proven particularly important in our country.
Given these situations when exposure is necessary, special policy considerations are required. It has long been acknowledged that when the autonomy of an individual is low, protections must be high. At the federal level, for instance, the 1979 Belmont Report (written by the Department of Health, Education, and Welfare) asserts that a basic moral imperative is to “protect those with diminished autonomy.” Because individuals cannot choose whether or not to use public facilities for bathing, changing clothes, or relieving themselves (indeed, engaging in these activities outside of public facilities may be illegal) privacy protections must be high. These protections would include the minimum of non-exposure to the opposite biological sex.
With the Dear Colleague letter, there is no guarantee of this basic privacy. The letter specifically stipulates that schools are not required to provide other facilities for students who do not desire self-exposure to, or exposure from, those of the opposite biological sex. This allows for situations where students cannot be assured of this basic privacy. By allowing those of the opposite biological sex to use the facilities created for the express purpose of controlling exposure to those of the opposite anatomy, the purpose of these facilities is lost.
The Situation of Minors in Public Schools
The demise of this basic privacy is all the more regrettable given the particularly low autonomy of those involved: minors at public schools. These students experience a triple threat to their autonomy: (1) their need for exposure (i.e., the physical need to use locker rooms, showers, bathrooms, and overnight sleeping arrangements); (2) their legal status as minors; and (3) the legal requirement for them to be at school. In other words, these minors find themselves with the physical necessity of using facilities in a location where they are legally required to be. If the students do not risk exposing themselves or being exposed to those of the opposite biological sex, they may face legal consequences.
As an additional removal of autonomy, students cannot even be informed that they may be exposed or expose themselves to those of the opposite biological sex. Without permission from the transgender student, other students cannot be told whether or not there will be a person of the opposite biological sex in the same locker room, shower, sleeping location, or bathroom. This violates the first ethical principle set forth by the Belmont Report—that those with low autonomy should be afforded maximum protections. When autonomy is low, levels of privacy must be high.
The letter violates this basic ethic and creates policies that could constrain minors, without their consent or knowledge, to be exposed or expose themselves to unknown members of the opposite sex in a school they are legally required to attend. And it does so unnecessarily. There are numerous alternative policies that can meet the needs of all students.
An Alternative Solution
Alternatives policies can balance expressive individualism with community and family-oriented principles while still upholding the essential functions of public facilities created to control exposure. At a minimum, this would involve requiring that students know whether or not they would need to use these facilities with those of the opposite biological sex, requiring accessible alternatives to those who do not desire this exposure.
But if private spaces for the sexes are seen as promoting the good of the community—as they are in most cultures of the United States—it may be needful to provide alternative facilities for the transgender student. And although the Dear Colleague letter’s adherence to expressive individualism rejects this idea (arguing it creates a separate class of persons), these concerns can be met with relative ease.
In public schools, there have been and will always be individuals whose beliefs, practices, or physical natures require special attention and facilities. Because public schools are diverse, there exist built-in opportunities for students to learn to create community with those who are different from themselves. Teachers regularly instruct students—by their words and deeds—in how to respect others despite small and large differences. Addressing the issue as a teaching opportunity would facilitate a sense of understanding and build community connections while still ensuring the most basic form of privacy.
With its myopic focus on expressive individualism, the policies promoted in the Dear Colleague letter miss important aspects of community-building that could generate better and more complete integration. If we balance an individual vision with communitarian and family ideals of social integration, we can meet everyone’s needs without pitting people against each other.