By Ruby Van Dyk || Staff Writer
On Thursday, February 15th, Benjamin Jerner came to F&M to discuss the current legal landscape impacting access to public bathrooms. Jerner, a lawyer from Philadelphia, has spent the last 20 years practicing law and specializing in estate planning, probate (check more about probate laws here)and estate administration, adoption and legal issues impacting gay, lesbian, bisexual and transgender clients.
Jerner’s talk, titled “Bathrooms – Where do we Stand (or Sit?)” had a great turnout. Students, faculty, and even a few members of the Lancaster community all gathered to listen to Mr. Jerner. Jerner started out by laying out a brief history of public restrooms. Public restrooms were created in ancient Rome and have been subject to controversy ever since. Jerner pointed out the fact that women used to be excluded from public restrooms until they entered the workforce during the Industrial Revolution. The Law Office of Glenn C. McGovern gives information that the bathrooms were also segregated by race until the Civil Rights Movement. This means public bathrooms have had a history of exclusion.
In the last few years the issue of public restroom use in regards to transgender people has begun to garner more attention and debate. Some people argue that transgender individuals should have to use the restrooms that corresponds with their biological sex rather than their gender identity. According to Jerner, this is extremely problematic because this could subjugate transgender individuals to the risk of physical harm, social isolation and could publicly out them as transgender against their will. Jerener added that institutions failing to recognize and legitimize people for who they are makes people, especially young people, feel excluded and illegitimate. Jerner stated that he thinks the solution is gender inclusive bathrooms, not just allowing transgender individuals to use whichever bathroom they preference, but allowing all people to use all public restrooms.
Jerner then went on to discuss some of the legal arguments in regards to the issue. People who are against Gender Inclusive Bathrooms argue a few things. First, that Title IX does not apply in this case because protections based on “sex” only apply to biological sex. Secondly they argue that allowing transgender individuals to use bathrooms for the “other” sex violates the privacy of cisgender individuals. These arguments according to Jerner, and many others are not strong. He argues that Title IX does in fact apply to transgender individuals because their “sex” is the issue at stake and is therefore protected. He also argues that the presence of transgender people in bathrooms does not implicate privacy concerns more than the presence of any other individuals in public restrooms.
Near the end of his talk, Jerner stated that he didn’t have a definite answer in regards to how to deal with this issue. Do we wait for it to slowly become more acceptable? Do we fight in lower courts and wait for the decisions to rise of through the ranks? He wasn’t sure. But he added that it was important to note that there has been some progression with private companies including Target and Walgreens, and that is hopeful.
Jerner closed by reminding his audience of three things: First, that people need to use the bathroom. Second, that transgender people are people. And third that transgender children are children and we have a duty to protect them.
First-year Ruby Van Dyk is a staff writer. Her email is rvandyk@fandm.edu.