The Right to Privacy: The Issues of Number One and Two
The argument that bathrooms should not be gender inclusive is a relatively new one, as for much of American history, public restrooms, where multiple people have occupied a single space, were not the societal norm. The first law separating bathrooms by the sexes came in 1887 when Massachusetts passed a law that factories had to provide gender-specific restrooms for women in the workforce (Rhodan,) but other laws supporting this idea did not become common until the 1920s. The United States Of America has, for a time, taking a marked issue with implementing inclusionary practices into its legal protections for those who are not of the cultural majority. We can see evidence of this in landmark cases that involve discriminatory practices based upon a person’s race (Loving v. Virginia )(Brown v. Board of Education)(Plessy v. Ferguson) marital status (Griswold v. Connecticut) and sexual orientation (Obergefell v. Hodges)(Lawrence v. Texas) In these cases, the Supreme either upheld long-standing societal norms or deemed through thorough consideration that the central issues of each case were indeed a violation of personal protections provided to individuals under section 1 of the 14th amendment, which provides citizens of the United States equal protection under the law, the 4th amendment, which grants a reasonable expectation to privacy and protection from unreasonable search and seizure and the 9th amendment which grants protections to individuals not already outlined in the existing amendments. It is through analysis of the cases presented that one is able to draw parallels to the issue of whether the personal privacy of an individual, or group of people should be extended to what is considered to be one of the most private of places. Furthermore, with the issue of gender identity being at the forefront of the bathroom discussion, let us define what gender and sex mean in a modern context and how those who may not fit into the default categories may be affected by enforcing bathroom use for the sex you were assigned at birth.
Let us begin by looking at three cases that involve the use of standardized segregation and the way in which the court interprets the protections that are afforded to those in the social majority versus those considered to be a minority. In the case of Plessy v. Ferguson, the central issue revolved around the Separate Car Act, 1890 La. Acts No. 111, p. 152 § 1, in which the state of Louisiana passed an act that stated that all railways must provide African Americans a separate car to ride in on a train. The plaintiff argued that because mandating separation of the races was akin to a class system, it would be in violation of the 13th amendment which gave African Americans freedom from slavery, indentured servitude, and full rights as American citizens, as well as violating his equal protection under the 14th amendment. The Supreme Court decided in a seven to one majority, with one justice abstaining from voting, that the idea of separate but equal was strong enough to stand on its own in respect to providing protections to African Americans under the13th and 14th amendments. In this case, the court asserted that the Separate Car Act, was not in violation because it was only drawing a distinction between two races and was not specifically labeling one race as inferior to another. Because it was not designed to place African American individuals in a form of slavery, it did not violate the 13th amendment and because it did not label one race superior over another, rather it gave each race equal provisions in a separate space, it was not in violation of the 14th amendment.
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Let us jump forward to a case that took place just 59 years later in 1955, to a Supreme Court case that began to tear down the will of segregated life in the southern states. In Brown v. Board of Education, the central issue that was argued by the plaintiffs was that the lower courts had issued improper judgments in allowing the segregation of races in public schools. The rule here was the implementation of southern Jim Crow laws in 18 states during the reconstruction period that made segregation legal and mandatory for schools and used the idea that as long as the children of a different race were being provided a like opportunity for education in the form of a scholastic environment, then they were in no way treating them different and were providing them equal protection under the 14th amendment. After carefully reviewing the facts of this case, the court reached the decision because there was not only a marked cultural acknowledgment of the difference between white and black students, but a large gap in the quality of education, funding of black schools, and building structures. Therefore students who attended black schools were not afforded the same opportunities for learning in the public school system and were indeed having their right to equal protection infringed upon. The court remanded the case back down to the lower courts with the provision that they do everything within their power to desegregate schools in a timely manner.
To further examine the issue of racial segregation, let’s move forward another 12 years to 1967 and look at the case of Loving v. Virginia. In this case, the plaintiff argues that because the state of Virginia would not allow a marriage to exist between an African American and white couple to be performed in the state and refused to recognize their union they had to go to another state to marry and that refusing them their right to was in violation of their 14th amendment rights for due process and equal protection. The statutes that expressly forbade this were Va. Code Ann. §§ 20-58 and 20-59, did not allow the mixing of white blood with anything other than Native American. Because the Lovings traveled to Washington D.C. to acquire a marriage license but continued to reside in the state of Virginia, the state found them in violation of the aforementioned statutes and sentenced them to a year in prison, were they to remain in the state. After moving to D.C., the Lovings filed suit against the state of Virginia on the basis of denial of their equal protection rights under the 14th amendment. Upon review of the facts of this case, the Supreme Court came to a unanimous decision that there was no rational evidence that should not permit two individuals of different races from being able to marry, other than the idea of racial inferiority, which has no scientific basis and that denying them the right to marry was based solely on racial discrimination. The court struck down the lower court's opinion that because there was an equal application of the law to anyone who violated the statute it was in concurrence with the 14th amendment and stated that the need to marry is a basic civil right and that denying people the right to marry directly infringed on their right of due process.
Next, we will move on to the issues that members of the LGBTQ+ community have faced when seeking equal protection under the same laws that govern all citizens of the United States and see how it took the court time to adjust to allowing groups who were of the minority to gain full and equal rights, where in just 2015 same-sex marriage was legalized in all states. Let us begin by examining the case of Obergefell v. Hodges where the plaintiff argued that because same-sex couples are denied the right to marry under state laws in Michigan, Kentucky, Ohio, and Tennessee, these states additionally refused to acknowledge marriages occurring in other states, they were denied equal protection and due process under the 14th amendment. Upon review, the court could not find a reason to deny same-sex couples the right to marry as marriage is viewed as a fundamental right and offers certain legal protections and social connotations that were being withheld. In making their judgment, the court drew heavily on the case of Loving v. Virginia to make their decision as again, those in the social minority were being denied equal legal protection under the guise of discriminatory practices. In a 5/4 split, the court reversed the decisions made by the lower courts and deemed that because same-sex couples were being denied basic fundamental rights in not being able to marry, these laws were unconstitutional in their legality and therefore the ban on same-sex marriage was unconstitutional.
To see how the court finds issues of the most private of human processes, sex, and the reproductive process that may occur from it, we will also examine the court's sides with the citizens on sexual acts. Let us look at Lawrence v. Texas in which the state of Texas, along with 12 other states, had a law in its state constitution, which banned members of the same sex from engaging in “deviant” sexual acts, which is a class C misdemeanor. The key issue of this case revolves around whether Tex. Penal Code Ann. § 21.06(a) (2003), which treated deviant sexual conduct as a class C misdemeanor, the same level as a traffic ticket, was in violation of the 14th amendment’s equal protection and due process clauses. In this case, a homosexual couple was in their home, engaging in intimate acts when their residence was invaded by police officers who had been given false information that there was a domestic disturbance involving a gun. When the officers discovered the two individuals in coitus, they proceeded to arrest both parties pursuant to the state penal code, and the individuals would so on be found guilty, jailed, and subsequently fined for engaging in consensual sexual acts within the privacy of the own home. The Court found that the social stigma that went along with the enforcement of a statute that only impacted same-sex individuals was not minor and that there was no legitimate reason that would justify the intrusion into personal and private life and attempting to control the private life of a citizen, the state was indeed violating the plaintiff’s 4th, 14th, and 9th amendment rights. In a 5-4 split, the Supreme court struck down the Texas statute and overruled a previous decision made by the court in 1986’s hearing of Bowers v. Hardwick, that deemed Georgia’s ban on sodomy constitutionally sound.
For our final Supreme Court case, we will take a look at the case of Griswold v. Connecticut from 1965. This case, like the last, centers around the right to privacy, but rather than the actual instance of sex, it deals with the use of contraceptive materials. The Connecticut Gen. Stat. § 53-32 (rev. 1958) made it illegal to not use contraceptives and to distribute, or prescribe contraceptive medications to people. Upon review, the court found that the state of Connecticut violated the 4th amendment’s right to personal privacy and the 9th amendment, which grants rights not already outlined in the constitution, as well as the 3rd and 5th amendments. The undue hardship of not having contraceptives may impose on those who may have unwanted pregnancies is a clear violation of personal privacy and by disparaging citizens from the use of contraceptives the state infringed upon their personal rights. The court’s 7-2 decision struck down the ban on contraceptives and made it legal for married couples to seek forms of contraceptives.
Now that we have examined cases in which the Supreme court has deemed that personal privacy and equal protection should be extended to all citizens, even those in the social minority, we can begin to apply the same key ideas to the question of whether or not the same right to privacy should be extended to those who are part of the transgender community and if the plublicly private space of a bathroom falls under the right for privacy. For clarification, we will define the term transgender and whether or not it may be deemed an immutable trait. A transgender individual is simply someone whose gender identity does not match the sex they were assigned at birth. Many individuals who are transgender do not undergo gender reassignment surgeries, hormone treatment, or dress in the gender in which they feel they are. Others may choose to take the necessary steps to live comfortably with the gender they associate with.
As for the matter of whether or not gender identity is an immutable trait, the role of gender has long shaped the social construct of humanity. Until recently, men and women have shown very little deviation from predetermined gender roles, but as of late women have begun taking on positions of a higher power in the workforce and men are more often taking on the role of caregivers, blurring the normative gender lines. Interestingly, according to the Intersex Society of North America, a recent scientific study conducted at Brown University titled “How Sexually Dimorphic Are We? Review and Synthesis” shows that anywhere from .5 to 2 percent of the population from 1955 to 2000 was born with some form of sexual dimorphism, meaning they exhibit some sexual trait (primary, secondary, genetic, or hormonal) that does not coincide with their assigned gender at birth. If we go with the median number of this estimate, it would place the number of individuals who have some form of sexual dimorphism much higher than the .5 percent of the population that identifies as transgender. To assume that all individuals who exhibit feelings of gender dysphoria would also have some form of gender dysmorphia would be a stretch, to say the least, but considering the number of individuals who have gender nonconforming traits from birth is considerably larger than those who identify as transgender, it is not unthinkable that there would be some form of overlap. Additionally, in 2007 a study titled “Male-to-Female Transsexuals Show Sex-Atypical Hypothalamus Activation When Smelling Odorous Steroids” by the Karolinska University Hospital shows that the transgender exhibits hypothalamic activation when smelling pheromones more in line with the brain activity of the gender they identify as being. While it is not arguable that physical traits can be altered, brain chemistry is much harder to change. These facts should be considered as scientific evidence that transgender individuals have an immutable characteristic that should be protected under the privacy afforded by the 4th amendment and the right to full and equal protection under the 14th amendment.
To discuss the bodily rights of an individual is to invade the personal privacy of an individual who is merely seeking to relieve themselves in a public bathroom facility. We have seen that the Supreme court, while slow to embrace protections for those in the minority, the court has over time, come to support that all citizens, regardless of sex, race, age, or marital status should be shown equal protection under the law. In several countries in continental Europe, is not uncommon to find unisex, multioccupancy bathrooms, thereby eliminating the concern of members of the opposite gender, or trans individuals being in the same bathroom. While it is not socially prevalent in the United States, these types of restrooms are becoming more prevalent, partially out of economic concerns, as there would only be one space needed, rather than two, but also from shifting cultural norms, as the younger generations are becoming more sexually liberal and are shaking off the bondage of sexual repression. There is nothing more personal than the body and the processes it undergoes and the personal protections provided by the 4th amendment should be enough that individuals who wish to use the bathroom should not be subjected to proving that they are of a certain gender in order to use it.
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