Montgomery Wisely Keeps Anti-Discrimination Law For Transgender People Out of Public Restrooms

By Marc Fisher
Sunday, November 11, 2007

In oh-so-progressive Montgomery County, where it's illegal to smoke or use trans fats in restaurants, there are, you will be relieved to learn, some limits to government's desire to legislate behavior. Just days before a vote on making it legal for certain men to use women's locker rooms and restrooms, the County Council has backed off.

Council members will still proceed Tuesday with a move to ban discrimination against transgender people in housing, employment and taxi service. But a provision to let people whose gender identity conflicts with their physical equipment use the public restrooms of their choice was withdrawn Friday.

Given the social stigma associated with cross-dressing or changing gender, tweaking the discrimination law to protect people based on gender identity seems fair enough. Many transsexuals are fired as soon as their employers learn they plan to change genders, according to advocates for sexual minorities. Thirteen states have passed such laws in recent years.

But council member Duchy Trachtenberg had wanted Montgomery to go further -- allowing, for example, a biological male with a female self-image to use the women's restroom, "regardless of whether the individual has provided documentation of their gender identity," as the county attorney put it.

Trachtenberg (D-At Large) told me she came into office with "a number of social initiatives I wanted to address in my four years." Last spring, she led the way as Montgomery banned trans fats. This fall, with encouragement from Dana Beyer, a retired eye surgeon who serves as Trachtenberg's chief of staff and is a transgender woman, the council member decided that "adding a protected class for transgendered individuals is common sense."

Her bill "really isn't radical," Trachtenberg said. But radical is precisely what opponents -- mainly from a parents group formed earlier to fight the county's sex education curriculum -- called it. Trachtenberg dismissed the protesters as a "small group of ideologically driven individuals" who "don't speak for the majority."

But when push came to shove, the council yielded to the protests, which by late last week included radio ads alerting the public to the bathrooms clause.

"The County Council should not force or legislate shared nudity," said Ruth Jacobs, a Rockville physician who called the transgender proposal a "sweeping entitlement bill protecting cross-dressers and transvestites . . . but not protecting Montgomery County residents from unforeseen consequences. Any XY male just wanting to visit the women's bathrooms or locker rooms would by this bill's definition be exhibiting transgender behavior and could be protected."

There's always some hypersensitivity when public policy reaches into the bathroom. But when council member George L. Leventhal (D-At Large) wrote to a constituent that he could not "absolutely put to rest your concern that girls might find themselves in a locker room or dressing room in the presence of a person who expresses or asserts herself as a woman but who still has male genitals," the concerns of a small, conservative protest group blossomed into broader doubts about the council's values.

Trachtenberg insisted that it was "highly unlikely that a man who is transitioning to a woman state would go into a women's locker room and expose their bodies." Other council members noted that the county's Peeping Tom law would punish voyeurs who might seek to use a new anti-discrimination rule to justify being in the wrong place.

But the fact remained that Montgomery's ill-fated proposal to grant restroom access without conditions would have put the county at the far edge of transgender protections. Some states allow transgender people to switch to the other sex's restrooms only after they have completed genital surgery. Some allow transitioning people to change restrooms before surgery only if they can document their gender status with a court order, physician's letter or government identification.

Courts across the country have been skeptical of Trachtenberg's approach. Julienne -- formerly Justin -- Goins had started taking female hormones but had not undergone sexual transformation surgery when her employer told her to use either the men's room or a single-occupancy restroom. Goins refused to comply and, when her employer said she would be disciplined, she sued. The Minnesota Supreme Court ruled that there was no illegal discrimination because the bathroom restrictions were based on biological gender.

In September, a federal appeals court ruled that the Utah Transit Authority was within its rights to fire a bus driver, Krystal Etsitty, who was a biological male but was transitioning to female and had taken to using women's restrooms along her route. The transit authority invited the driver to reapply after her surgery but said Etsitty's use of women's rooms while in uniform created unacceptable liability for her employer.

Still, as late as Friday, Trachtenberg was insisting that Montgomery residents share her desires to be at the forefront of anti-discrimination efforts. "Change is difficult," she said. "I don't back down when a subject is controversial."

But the council, quite properly, did. Protecting people who are different, even when their very existence makes others uncomfortable, is the job of the law. But the restroom provision reached too far, putting the comfort of the few over the rights of the many. People who enter a locker room reserved for members of one sex have the right to expect that everyone in the room shares the same equipment.

© 2007 The Washington Post Company