How Trans People in Bathrooms Became the New 'Homosexual Plague'

Transgender people are the new untouchables, the new “plague.”

Now trans peoples’ use of bathrooms is a hot political issue, and not just in North Carolina, which has made national headlines. Ted Cruz raised it repeatedly in the waning days of his presidential bid. This week in Texas, the notoriously hard-right Lieutenant Governor Dan Patrick called for the resignation of a Fort Worth school superintendent because he implemented a trans-inclusive bathroom policy.

With the Obama administration’s new policy, announced yesterday, to condition federal funding to public schools on compliance with trans-inclusive policies, the issue is certain to further rile the right. Moments after the news broke Thursday night, Family Research Council president Tony Perkins derided it on Twitter as promoting “sexual anarchy.”

This bathroom fixation did not come out of nowhere. A mid-1980s pamphlet distributed by the religious right advocacy group Eagle Forum, which spearheaded the successful effort to stop the Equal Rights Amendment, touted a supposed “ERA-Gay-AIDS connection.” It warned that if “homosexuals and lesbians” had their way, public school sex education would “describe homosexuality in a non-judgmental way,” gay adoption and marriage would become legal, gays and lesbians could serve in the military, the Civil Rights Act would be amended “to include ‘sexual preference’”—and “sodomy laws” would be repealed “in order to have the right to use public restrooms and parks to solicit sex with strangers.”

Bathrooms continued to be a source of anxiety in the following decades. In their 2003 book, The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, Alan Sears and Craig Osteen identified what they call the “bathroom problem.” They were critical of efforts at colleges and universities, complete with scare quotes, “to provide ‘gender neutral’ restrooms for transgender students, in order to ‘protect’ them from alleged harassment and physical violence.”

Sears is the president and CEO of the Alliance Defending Freedom, a religious right legal group that advocates for bathroom bills, provides legislators with model bills, and litigates cases on behalf of students and parents who say they’ve been harmed by trans-inclusive restrooms. The bathroom issue has become so important to ADF’s work that it has a new website asserting that trans-inclusive bathrooms are the result of efforts to “push a political agenda,” but actually endanger the safety and privacy of women and children.

ADF is representing parents and students in a new federal lawsuit in North Carolina against the United States government, asking the court to rule that gender identity is not included in federal anti-discrimination laws that proscribe discrimination based on sex. The lawsuit is one of five filed around HB2, the North Carolina law that requires transgender people to use the bathroom aligned with the gender listed on their birth certificate.

“There’s nothing dignified about ratifying an unhappy person’s tragic misperception.” — Mona Charen, conservative columnist

The Obama administration maintains that federal laws prohibiting sex discrimination, like Title IX, also prohibit gender identity discrimination. ADF seeks a court ruling that Title IX only protects against discrimination based on sex, and that “sex” does not include gender identity. (The question of whether civil rights laws that forbid sex discrimination also forbid discrimination based on gender identity concerned Eagle Forum, even back in the 1980s, and is now the lynchpin of the Obama administration’s suit against North Carolina charging that HB2 violates federal civil rights laws.)

Anti-trans activists have tried to turn the issue into one of women’s rights, to try to make liberals seem callous about the privacy rights of women and girls, and to their anxieties over sexual assault. Peter Sprigg, a Senior Fellow for Policy Studies at the Family Research Council, has accused “transgender activists” of putting “ideology above safety.” He expressed his concern in an op-ed in the Quad City Times, an Iowa newspaper about women’s “anxiety about the possibility of sexual harassment or assault”and “the violation of privacy and modesty.”

ADF is leading the pack. In a statement about its lawsuit against the federal government over HB2, ADF legal counsel Kellie Fiedorek said, “It’s ironic that laws from the 1960s and 70s that were enacted to combat sexual harassment and discrimination by men against women are now being used against women, specifically by letting men use women’s showers and locker rooms against their will.”

North Carolina Governor Pat McCrory also sued the United States government on similar grounds, charging it is making a “radical reinterpretation” of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. McCrory charges that the federal government’s interpretation would prevent North Carolina “from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered state employees.”

Yet in McCrory’s state, trans people have reason to fear for their safety in bathrooms. A Rowan-Salisbury Board of Education member in Salisbury, North Carolina, speaking about a new policy allowing pepper spray in the district’s schools, suggested it could be used by girls against transgender girls encountered in school bathrooms.

The Christian right, of course, has its own pop culture, intended to counter overly permissive Hollywood. Phil Robertson, the Duck Dynasty patriarch known for his previous anti-LGBT statements, used the bathroom controversy to write in an email to supporters of the political advocacy group Citizens United this month: “The Judeo-Christian values that led America to greatness are under full assault by the mob mentality of political correctness, and we’re slowly losing our soul.”

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These new efforts, like HB2, to restrict trans peoples’ bathroom use have been catapulted onto the national stage this year, provoking an emotional defense of trans rights by U.S. Attorney General Loretta Lynch. But they have been percolating in religious right circles for at least a decade. In 2007, the anti-LGBT activist group Parents and Friends of Ex-Gays protested a non-discrimination law in Montgomery County, Maryland, which included gender identity as a protected class. At the time, PFOX’s Director, Regina Griggs, told the conservative site WND that permitting trans people to use the bathroom aligned with their gender identity “endanger[ed] children” and represented “trying to normalize mental illness. We’re supposed to help these people.”

The claim that trans people suffer from a mental illness still has currency in conservative circles, even while many anti-trans advocates’ public statements focus on the privacy and safety of other people using bathrooms.

Mona Charen, the conservative columnist and a fellow at the Ethics and Public Policy Center, wrote in the National Review of “gender dysphoria,” and, reacting to arguments that the dignity of trans people must be protected, protested, “There’s nothing dignified about ratifying an unhappy person’s tragic misperception.”

“it’s just become a popular thing to become gender noncompliant…For them, it’s kind of a fun thing to stir everybody up.” — Walt Heyer, formerly trans conservative activist

Michael Brown, a conservative talk radio host and commentator based in North Carolina, speaking on behalf of a coalition calling itself Keep NC Safe, blamed the entire controversy on the February passage of a Charlotte, North Carolina ordinance that, among other things, permitted transgender people to use the bathroom of the gender with which they identified. HB2 was a reaction to that ordinance, and “it only becomes an issue when LGBT activists make it an issue,” he said.

“While we want to understand the issues faced by transgender individuals, we want to become sensitive to that, from children up to adults, we want to do our best to help,” Brown said. At the same time, he added, “we cannot inconvenience or traumatize or embarrass 99.8 percent of the population because of the issues of the 0.2 percent.”

Yet Brown, in his written advocacy on the issue, has quoted “the American College of Pediatricians, a group of medical professionals that broke away from the politically correct American Pediatric society,” which “has stated that, ‘Conditioning children into believing a lifetime of chemical and surgical impersonation of the opposite sex is normal and healthful is child abuse.’”

Some conservatives also claim that trans people can be “cured.” One of them is Walt Heyer, a writer and activist who claims he was trans, underwent gender reassignment surgery as an adult, and then went back to identifying as a man, has popularized this idea. “Changing genders is only a temporary reprieve, not a solution,” Heyer said.

Heyer claimed that many people who say they are transgender really are not, but are “militant, noncompliant gender people who like to stir things up,” while true transgender people are “struggling” and “in pain.” In the last two or three years, he said, “it’s just become a popular thing to become gender noncompliant…For them, it’s kind of a fun thing to stir everybody up.”

Heyer has been praised throughout conservative media, including by Rush Limbaugh, who cited Heyer to support his own claim that transgender activists are seeking to “redefine normal.” Heyer has been published multiple times in The Federalist and the Public Discourse, both leading conservative sites.

Writing in The Federalist recently, Heyer called for removing the T from LGBT, because “No good reason remains to co-mingle people with mental disorders with people who are homosexual. Nor is it necessary to continue to give social credibility to this tiny group of delusional people who need psychiatric or psychotherapy first and foremost, not pronoun protection or gender reassignment.”

The “homosexual plague” rhetoric, and shaming of people based on their sexual orientation or HIV status, now lingers only in fringe circles. There’s reason, then, to expect that the bathroom frenzy will similarly fade, along with hysteria and misinformation about trans people. After all, the Republican Party is poised to nominate a presidential candidate who gave permission for Caitlyn Jenner to use the women’s room in his own building.

Sarah Posner is an investigative journalist and author whose work has appeared in The New York Times, Rolling Stone, The Washington Post, and many other publications.