Trump to Dump Transgender Students, But There's a Compromise

"Reasonable Accommodation" Provides Protection, But Balances Rights of Majority
 
 
There is a Simple Tested Compromise
There is a Simple Tested Compromise
WASHINGTON - Feb. 22, 2017 - PRLog -- President Donald Trump is reportedly about to dump the federal ruling which has pressured schools nationwide to grant anatomical males the unfettered right to use female restrooms, even if there are ample single-user restrooms readily available, and without any proof that the male - student or adult - is in fact transgender.

        On Tuesday, White House Press Secretary Sean Spicer said Trump "has maintained for a long time that this is a states' rights issue, and not one for the federal government. This is not something that the federal government should be involved with," and that "further guidance" would be issued soon.

        Although many in the LGBT community are vehemently complaining that transgender students will be left with no protections, and might be forced to use restrooms incompatible with their sexual identity, an LGBT advocate says that a simple compromise which satisfies everyone is readily available.

        In other areas where groups have been found entitled to legal protection, that protection is not absolute, but must be balanced against the competing interests of others, notes public interest law professor John Banzhaf.

        Applying this concept, the interests of transgender students can be accommodated without trampling on the rights of traditional females - girls and women - whose privacy is invaded, and their physical safety threatened, if anatomical males have absolute and unfettered rights to use female restrooms.

        In this regard, Banzhaf notes, the concern for physical safety - protection against sexual assault and even rape - is based not so much on genuine M2F transsexuals, but rather to typical men who might claim a female identity if caught lurking in female restrooms.

        As an example of the principle, under Religious Freedom Protection Acts [RFPA] designed to protect the religious identity of adherents to various religions, deeply religious persons are not granted absolute freedom to practice their religious identity and beliefs not matter what the consequences.

        Rather, an employer need only make a reasonable accommodation to those beliefs, and it has a complete defense if it can show that it is "unable to reasonably accommodate" the employee or prospective employee's religious observance or practice "without undue hardship."

        So, for example, a Muslim woman may be permitted to wear a head covering in some situations, but not those where permitting it would go beyond making a "reasonable accommodation" - for example, in an operating room, as a fire fighter who must wear a protective breathing mask, etc.

        Similarly, a transsexual student might have his or her interest in not being forced to use restroom incompatible with his sexual identify, if the student can use a readily available single use restroom, a private restroom in the school nurses' office, etc.

        As an even better example, a similar reasonableness standard is applied to protecting the interests of those with disabilities under the Americans With Disabilities Act [ADA], says Banzhaf.

        For example, their fundamental right to enter and use a building is protected, but they do not have an absolute right to use each and every exit or entrance which may be available to others.  Instead, the school need only make a reasonable number accessible to wheelchair uses, says Banzhaf.

        Thus, he argues, providing enough single-user restrooms to reasonably satisfy the requirements of transgender students might adequately protect their rights without opening up female restrooms to traditional male students who claim to feel female only in order to obtain access for sexual purposes.

        Moreover, a "reasonable accommodation" standard would leave individual schools free to tailor a remedy to a particular situation, and not be forced to use a one-size-fits-all remedy mandated by Washington.

        Although virtually every all-gender restroom is of the single-user type like those used on airplanes, these can be a very inefficient use of scarce square footage available in a typical school when it is under construction.

        Even more seriously, in existing buildings it is even more difficult and expensive to locate more single-user restrooms where they can be conveniently used by transgender students - e.g., between classes - since it involves not only converting spaces from existing uses but major plumbing modifications.

        But there is a simple compromise which satisfies the needs of transgender students, traditional students concerned about privacy and protection, and those who build and operate schools.

        Prof. Banzhaf cites an experimental all-gender multi-user restroom now being tested at his law school.  It not only satisfies the interests of all sides, but - unlike the other major proposed remedy - does not require the often-difficult and usually-expensive construction of many new single-user restrooms.

        It also satisfies the needs of transsexuals as well as transvestites - those who dress in a manner inconsistent with their anatomical sex - to be able to have ready access to conveniently located restrooms without having to declare any particular gender preference or identity, while at the same time insuring that girls and women will not find anatomical males (transgender or otherwise) in their female restrooms.

        What his law school has done is simply to re-designate what was formerly a men's restroom - with 3 urinals, 1 toilet in a stall, and 2 wash basins - as an all-gender restroom.  Since the percentage of students who are transsexual is very small, most of the time this converted room functions simply as any other male restroom would, with many men able to urinate at the same time using the urinals.

http://banzhaf.net/  jbanzhafATgmail.com  @profbanzhaf

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