Bathroom Politics



Christopher Ebbe, Ph.D.   5-16

ABSTRACT:  Issues involved in the recent move by North Carolina to assign transgender persons to certain public bathrooms are identified and consequences suggested.

KEY WORDS:  transgender, queer, intersex, hermaphrodite, gay, lesbian

Recently the state of North Carolina created a law that among other things directs all persons to use the public bathroom that would be appropriate for their gender at birth, regardless of any difference between that gender and a person’s current gender identification or physical genitalia.   The discussions about this that followed have been centered around two issues—privacy and safety, although much of the discussion seems to have been ill informed about the psychological and bodily realities involved.  The reader is invited to check out, here, his/her understanding of the varieties of gender identity and sexual orientation, so as to make a truly informed judgment on the matter.  (The statements herein are based on my observations of and experiences treating a number of LGBT persons during my 39 year career as a clinical psychologist and my efforts to learn more about such persons in order to help them appropriately.)

The most often voiced concern is that persons with male bodies will dress as women, go into bathrooms for women, and sexually harm adult women or little girls.  This new law is cited as protecting females from this, but there is no reason why such persons, intent on sexually harming females, would not have already been doing this, particularly if it was an effective predatory strategy.  The sexual harm itself is already illegal.  We have not been treated to descriptions of such crimes on the TV news, and this suggests that such crimes are very rare, since if they were happening, our TV news would most certainly have passed them on to us!

The federal Department of Justice has claimed that this new North Carolina law violates federal civil rights law (discrimination based on “sex”), although there is not specific language in existing civil rights law that deals with transgender persons per se.  This will be a point of legal contention (whether or not Congress intended for the word “sex” in the law to extend to different forms of gender identity), even though some Federal courts have already treated this extension as valid.

It is also being said that the North Carolina law prevents the forcing of school children to shower with those with different bodies, which seems to be a privacy/modesty issue rather than a concern for harm.  Showers could certainly be monitored adequately to prevent harm.    The showering issue certainly stirs up parents’ concerns about sexual awareness and behavior among children, and it would seem to be a legitimate point that many parents want to keep their children from exposure to the naked bodies of the opposite sex until a certain age.  Accommodations are already being made by various school systems in regard to facilities for transgender students, so perhaps there are acceptable accommodations in regard to showers, but I am not aware of the details of these.

Civil rights law seems to prohibit “discrimination” based on sex but apparently does not specify whether every establishment of difference is ipso facto “discrimination.”  We still have some private groups that are composed of only males or only females, but all public groups seem to be subject to claims of discrimination if a person of another gender wishes to join.  Public groups at issue would seem to be those sponsored by or connected with any level of government and those offering a service publically that is equally desired by all genders but offering them to only one gender (e.g., offering beauty treatments only to women).  So, identifying instances of discrimination would seem to be to some degree a matter of custom and judgment.  Some courts have no doubt already struggled with the question of when discrimination is discrimination.  If a non-transgender schoolgirl requested to shower with the boys on the basis of “discrimination” (or vice versa), it would probably be ignored or some accommodation would be sought. 

“Transgender” means a person who identifies primarily with the gender different from his/her birth gender.  Such persons may have had sex-change surgery, in which case they are now anatomically similar to the gender with which they now identify, or they may not have had sex-change surgery, so that they dress as the other gender but are still anatomically their gender of birth.  For those who are not familiar, before sex-change surgery is undertaken, persons are required by all responsible medical facilities in the U.S. to undergo extensive counseling and to live pretending both privately and publically to be the opposite sex for at least a year.  Every effort is made to prevent patients from regretting having the surgery.  Currently, parents who are supportive of their young children’s strong wishes to be the other gender are often allowing cross-dressing (dressing like the other gender) and desired toy and activity choices but delaying any surgery until the child is at least mid-adolescent.  Transgender persons do not switch sexual orientation preference after (because of) surgery, though some become open to having both male and female partners.  It is estimated that approximately 0.3 percent (1 in 300) of persons in the United States are transgender.

In this context, “sex” refers not to “having sex” but to the anatomical differentiations between reproductive types of the members of a species (male and female), and “gender” refers to customs and behavioral differentiations of the same groups for social and cultural reasons, rather than bodily reasons.  So, a person could wish to be, feel like, dress like, and/or behave like a person of the other gender while still remaining physically the same as at birth.

The realities on the ground in this debate are that we have quite a number of different groups of people involved.  (The complexity of this breakdown illustrates that human sexuality and identity are much more fluid than has been acknowledged heretofor by almost all societies.)

            male bodies (not made that way by surgery), identifying as male,
dressing as male

            male bodies (not made that way by surgery), identifying as
female, dressing as female

            male bodies (not made that way by surgery), identifying as
female, dressing as male

            male bodies (made that way by surgery), identifying as male,
dressing as male

            female bodies (not made that way by surgery), identifying as
female, dressing as female

            female bodies (not made that way by surgery), identifying as
male, dressing as male

            female bodies (not made that way by surgery), identifying as
male, dressing as female

            female bodies (made that way by surgery), identifying as female,
dressing as female

            (the categories “male bodies (not made that way by surgery),
identifying as male, dressing as female” and
            “female bodies (not made that way by surgery), identifying as
female, dressing as male” 
do not exist, except for transvestites
(see below), who are not transgender and 
who do not dress as
female consistently,
and female transvestites are hard to identify,
since women are fairly free to and sometimes do dress as
           male for fashion reasons)

             bisexual (male or female), usually identifying with birth gender
and dressing consistent 
with that

             gay or lesbian, identifying with and dressing consistent with birth

            gay or lesbian, identifying not with birth gender, dressing
consistent with birth 

            gay or lesbian, identifying not with birth gender, dressing as
opposite sex

            hermaphrodite, birth gender unclear, assigned a gender at birth
by doctors or parents, 
usually later choosing male or female
identification and dress consistent with that 

            androgynous, identify to a significant degree with both genders,
usually dress consistent 
with birth gender

This categorization assumes that anyone that has had sex-change surgery identifies with the new body gender and dresses according to that new body gender in order to be seen by others in that way.  For example, there would never (or practically never) be a person who goes through sex change surgery to become a male who then dresses as female.  This would be true in almost all cases, although there could be a few who have had the surgery whose identification preferences switch back and/or who are dressing contrary to their surgery for other reasons. 

Transvestites (or cross-dressers), by definition, wear some clothing of the other gender at some times but not consistently.  The clothing is worn for purposes of sexual excitement or gender comfort (because there is something “right” or soothing about it).  They do not, however, identify with or identify as being the other gender, and they are not transgender.  Women, of course, are much more free in this culture to wear male clothing than men are to wear female clothing, so frequent wearing of male clothing by a woman does not imply that she is cross-dressing.  If cross-dressing is done consistently for erotic purposes, by a person who is not transgender, it may be considered a mental disorder (although when considering the variety of ways of living described in this essay, one wonders why transvestism should be considered a disorder).

The birth gender of hermaphroditic persons is unclear since they have physical aspects of the genitalia of both genders at birth.  Most of these persons have a birth certificate that says either male or female, whether or not that is appropriate or fair, and initially they dress consistent with the birth certificate gender.  Some change primary identifications while growing up and begin to dress consistent with that changed identification.  They may or may not have surgeries as infants or later to become more clearly male or female.

Bisexual persons usually dress consistent with their physical gender.  The “bisexual” term has only to do with sexual object choice (choice of partners for sexual behavior) and does not imply an identification.  The term bisexual should probably be reserved for persons with more or less equal interest in males and females and not used for persons who have a clear preference for one of the other but occasionally engage in sex with the non-preferred gender.

Persons who are significantly androgynous (i.e., who have more or less equal identification with both genders) almost always dress consistent with their birth gender and are no more likely to be bisexual than the general population.  They almost never undergo sex change surgery, because they do not hate their bodies as they are (body dysmorphia), and because they have integrated both male and female attitudes and worldviews to some extent growing up.

The terms gay and lesbian refer to sexual orientation (preference for sexual partners of the same body type) rather than specifically to gender identity or dress.  The majority of both gay groups (gay male and lesbian) identify themselves consistent with their body type and dress consistent with their body type, though there are sizeable subgroups who identify primarily with the other gender but still usually dress consistent with their body type, at least in public.  It is very important in this discussion to recognize that the vast majority of gay persons are not interested sexually in children, just as the vast majority of heterosexual persons are not interested sexually in children.  Very few gay persons are interested sexually in persons of the other anatomic gender (although some will engage in their preferred sexual behavior with heterosexual persons, if those heterosexual persons are willing).

The term “gay” is used in some places here in its older meaning, to refer to both male and female homosexuals, though in practice, persons who are lesbian may refer to themselves as either gay or lesbian.  The term “LGBT” lumps together male (G for gay) and female (L for lesbian) homosexuals, persons who are bisexual (B), and trangender persons (T).  Sometimes a Q is added for “queer,” which is a general term for all gender identities that are not either straight male or straight female (but is  currently used by some in these categories to refer to all non-straight gender identities that do not fit directly in LGBT), and “I” is sometimes added also (LGBTQI) for intersex persons (hermaphrodites).

The proportion of persons in each of these groups who are interested sexually in children is approximately the same, so since far less than one percent of persons are transgender, the vast majority of persons interested sexually in children are “regular” (non-transgender) persons.  The proportion of gay male persons interested sexually in children is no higher than the proportion of non-gay male persons interested sexually in children.  The proportion of gay female persons who are interested sexually in children is no higher than the proportion of non-gay female persons who are interested sexually in children.  The proportion of transgender males interested sexually in children is no higher than the proportion of non-transgender males interested sexually in children.  The proportion of transgender females interested sexually in children is no higher than the proportion of non-transgender females interested sexually in children.  So, the concern that transgender persons pose a new or added threat to children is simply unfounded (as is the not-so-new concern that gay persons pose more of a threat to children than do non-gay persons).


Laws against dressing as the opposite sex and entering bathrooms hoping to find children to molest can do nothing to prevent such behavior, since such persons are presumably already doing this (or will be alerted by this new law to the possibilities).  It seems very unlikely that we will have “bathroom police” checking gender at the door, regardless of the new North Carolina law, so most people will continue to use the bathrooms consistent with their manner of appearance and dress, in order to avoid upset and conflict on the part of other bathroom users.  There should be no problems with single-gender bathroom use by persons who are dressing (and grooming) to appear as the gender consistent with the bathroom’s designation, regardless of whether their bodies are consistent with the bathroom’s designation.  Transgender persons with male bodies identifying as females, dressing as females, and using the female bathroom would almost never be interested in molesting females, and transgender persons identifying as male and dressing as men would almost never be interested in molesting males.  Gay male persons, who have always used male bathrooms, could of course have some sexual interest in other men in the bathroom.  Transgender persons identifying and dressing as male but still with female bodies would simply not use urinals.

There would be issues presented by having persons use bathrooms consistent with their birth genders (as directed by the North Carolina law) who dress as the other gender.  Thus, some persons dressing like women would lawfully be using male bathrooms, and some persons dressing like men would lawfully be using female bathrooms.  These users would obviously be identified as “different” and would be subject to verbal or physical abuse (or even sexual abuse) by some other users of the bathrooms, due to the prejudice and strong feelings of some people about transgender issues.  This would be more likely to happen in male bathrooms than female bathrooms.  Persons dressing as the other sex (different from their physical gender) have already been using the bathrooms consistent with their manner of dress and would be most likely to continue using the bathrooms consistent with their dress, in order to avoid such abuse, even if that went against the new North Carolina law.

The makers of the new North Carolina law seemed intent on ensuring that everyone with a male body would use a male bathroom, in order to prevent persons with male bodies from using female bathrooms and therefore being in a position to molest females, but the law seems more likely to increase overall violence in bathrooms than it is to prevent sexual assault (since it seems clear that there is very little sexual assault in bathrooms anyway, particularly by transgender males, who are far, far less than one percent of the population). 

It is important to bear in mind that it is not a simple matter to dress as the opposite sex and “pass” successfully, particularly for males, since to “pass” as women requires extensive, ongoing effort with regard to skin, hair, and choice and acquisition of garments.  These serious and extensive efforts would only seem worthwhile to persons who identified as and wished to be seen as the opposite sex and would be too much work for anyone wishing simply to dress as a woman in order to enter a bathroom.  There would be no point in a male suddenly and carelessly trying to dress as female just to enter a bathroom, since it would accomplish little and would be quickly found out.  Any one-time or careless effort to “pass” as female by a male with molesting on his mind would be immediately spotted by women in the female bathroom, who would presumably raise the alarm or act to protect little girls in the bathroom.  If there were only children in the bathroom, then it would be just as well for the molester to enter with his/her own clothes as it would be to dress differently.  A male entering a female bathroom dressed successfully as female who lingered in hopes that all the adult women would leave the room and leave behind only children would most likely arouse suspicion by that behavior, and the likelihood of being left alone with children would be very small anyway.  Thus, cross-dressing for sexual purposes would not be worth the effort and risk, and it would be just as effective for such persons to enter the female bathroom dressed as male and either immediately run out or proceed with whatever sexual purposes they had in mind. 


We can assume that putting people in bathrooms together with persons of the opposite sex would result in a very small added amount of sexual interaction in those bathrooms, although almost all of this would be consensual.  (Gay and some transgender persons have already been exposed to this possible temptation for years.)  Bathrooms that get normal public use are not good places for sexual assault, since there is always the possibility that other people will enter at any time, and all-gender bathrooms will have even more persons entering than single-gender bathrooms.  An argument could be made against all-gender bathrooms on the basis of minimizing casual sex.  Single-user bathrooms could still be locked by the user, but the outside doors of larger bathrooms with a number of stalls, would not be locked (just as they are not locked now).

Almost everyone will act in bathrooms in ways consistent with their manner of dress.  No person with a female body will use a urinal, and no male dressing as a female will use a urinal (since part of the point of cross-dressing is to seen as a female).  No person who is cross-dressing (dressing opposite to their current body gender) would act in a way that would reveal that, out of fear of attack.

Transgender persons are presumably already using the single-gender bathrooms that accord with their manner of dress.  Almost all of those who have already had sex-change surgery would naturally use the bathrooms of their newly reassigned gender, and this would not seem to pose more dangers to anyone than the non-transgender users pose.

Transgender persons prior to surgery pose a different set of issues.  Transgender men prior to surgery (bodily female, dressing as male), would prefer men’s bathrooms, though not to use the urinals.  Transgender women prior to surgery (bodily male, identifying and dressing as female), would prefer women’s bathrooms and would make every effort not to reveal their physical gender to avoid shaming. 

If all persons are using the same bathrooms, then anyone who is sexually interested in children (straight, gay, or transgender) could conceivably act out sexually in the bathroom, but as already noted, this would be very unlikely because of the considerable likelihood of being caught.  Parents who were especially concerned about this could go in the bathroom with their children, just as they do now.  (A significantly smaller proportion of women are interested sexually in children than the proportion of men who are interested sexually in children.)

Having all-user bathrooms would not increase molestation, due to the greater public surveillance, and it would eliminate having anyone cross-dress in order to get near children.  All-user bathrooms would actually make molestation less common, since there would be more people entering and using these bathrooms than either of the current all-male and all-female bathrooms.

There would, of course, be some discomfort for some proportion of men and women in adjusting to using bathrooms with people dressing as the other sex, and having all-user bathrooms might decrease women’s inclination to use the place as a “powder room.”


Laws assigning all people to the bathrooms of their birth gender will not reduce or prevent sexual molestation of women and children.  Men, gay or otherwise, who are interested sexually in male children will continue to have the same opportunities to molest children in single-gender bathrooms that they have always had.  Transgender males prior to surgery, dressing as male, will be especially unlikely to do anything sexual in male bathrooms, so as not to be exposed.  Transgender males who have had surgical gender reassignment did not become males in order to molest little boys.  There is no greater proportion of gay or transgender persons who are interested sexually in children than there has always been of non-gay and non-transgender persons who are sexually interested in children.

The new North Carolina law will result in some persons dressed as women using male bathrooms (transgender women who have not yet had sex-reassignment surgery but are living as women) and some persons dressed as men using female bathrooms (transgender males who have not yet had sex-reassignment surgery).  This will lead to increased violence against these transgender persons in those bathrooms.

It is, of course, conceivably possible that a straight or transgender male who is sexually interested in children could, dressed as a woman, enter a female bathroom (or an all-gender bathroom) and, if left alone with a child, molest that child, but the chances of this are no greater (or less) now than before the new North Carolina law was passed, for reasons detailed above.

All-user bathrooms would probably result in a very small amount of consensual sexual behavior in bathrooms but will probably decrease the chances of child molestation overall, because these bathrooms will have more patrons, and children will be less likely to be alone in these bathrooms with an adult who is interested sexually in children.  An additional factor mitigating against assault in both single-gender female and all-gender bathrooms by cross-dressing males is that dressing successfully as a woman takes a large amount of time and effort, something that almost no non-transgender males would be willing to do, and if the cross-dressing is not done well, other bathroom patrons will immediately notice.