Public accommodation laws prohibit discrimination against minorities in public spaces. In the United States, there is substantial discussion about using such laws to protect bathroom and other sex-segregated facility access for transgender individuals.1-3
In October 2016, a new Massachusetts public accommodation law was introduced to state healthcare facilities. Massachusetts General Laws Chapter 272, §98 guarantees, as a civil right, transgender individuals’ access to “sex-segregated facilities that are consistent with their sincerely held gender identity, regardless of their…medical or surgical [histories].”4 During professional training sessions conducted at healthcare facilities in the Boston area, 1 author received repeated inquiries from staff that reflect modern discourse surrounding transgender rights.
In an article published in the AMA Journal of Ethics,5 Elizabeth Boskey, PhD, MPH, MSSW; Amir Taghinia, MD; and Oren Ganor, MD, health practitioners in Boston, described the role of education in reducing “gender panic” and securing public accommodation law fulfillment in healthcare facilities.
Described by authors as “moral” or “gender panic,”6 concerns expressed by trainees most often reflected a fear that “heterosexual, cisgender [men] could present as…[transgender women] to prey on women in a sex-segregated space.”7 This same philosophy underlies the argument against gender-aligned bathroom access for transgender individuals. The extent of these opinions has tangible consequences: transgender individuals are expected to use the bathroom of their assigned sex, unless they are able to change the sex on their birth certificate, an option that is not possible in some states.8 In addition, some states require people to undergo genital-affirmation surgery before achieving legal bathroom access.9 Even if desired, such surgical procedures are financially prohibitive and an extreme measure to undertake for restroom access, the authors wrote.
Gender panic is, in part, a product of the language used in these “bathroom bills” and similar legislation, which “indirectly or directly [describes] transgender women as…perverse or unnatural.”10 In addition, the media have historically positioned transgender women as “dangerous, predatory, or objects of disgust,” although such portrayals have shifted in recent years.10 Broad public discussion regarding transgender identities is limited, and many people do not know anyone who is transgender. These circumstances limit understanding of minority gender identities and further enable gender panic and transphobic beliefs.
Notably, concerns regarding bathroom access are exclusively centered around transgender women, and are rarely expressed about transgender men.11 This asymmetry reflects a notion that “cisgender women are…vulnerable…in ways that cisgender men typically are not,” as well as the higher likelihood of transgender men to “pass” as men in segregated spaces.12 Authors noted that during the Boston clinical training sessions, mentioning this double standard was an effective way of challenging staff concerns and encouraging a change in perspective.
No scientific evidence supports the notion that cisgender men seek to “masquerade” as women to gain access to women’s-only spaces. In contrast, transgender women are at significantly elevated risk for sexual assault relative to cisgender women. A 2015 national survey indicated that 47% of transgender women reported having been sexually assaulted during their lifetime, a rate twice that of cisgender women.13,14 In addition, transgender women are at risk for sexual assault in public restrooms, which in turn causes health issues after bathroom avoidance.15 During training, presenting these statistics was another effective way to challenge gender panic concerns. In general, authors wrote, concerns about access to women’s-only spaces are based on substantial misconceptions. In the medical field, appropriate training and education of staff can reduce these misconceptions that threaten the health of transgender individuals.
“Secondary” gender panic was also addressed by the authors, referring to patient bias; specifically, the prospect of cisgender patients rejecting a transgender roommate. In healthcare practice, there is substantial incidence of patients refusing care from certain clinicians on the basis of race, religion, or sex.16,17 In response to these concerns, the authors wrote, it is helpful to “[prompt] staff members to recognize the similarity of gender identity to [other forms of identity],” and indicate that if staff have dealt in the past with discrimination based on race, for example, they have the capacity to defuse situations regarding gender identity. In addition, it was effective to remind staff that patients are not typically exposed to the genitals of other patients, and as such may not have a way of recognizing the gender identity of their roommate.
Although public accommodation laws implemented at medical facilities have the potential to improve health outcomes for inpatient transgender persons, it is essential to properly train the associated clinicians and support staff. Research indicates that explicit education regarding gender identity “increases staff members’ comfort and decreases bias in patient care.”18 Training notes from this recent Massachusetts legislation underscore existing bias against transgender individuals in healthcare; it is essential, in law and in practice, that clinicians and staff work to change these circumstances.
- Schuster MA, Reisner SL, Onorato SE. Beyond bathrooms—meeting the health needs of transgender people. N Engl J Med. 2016;375(2):101-103.
- Scout N. Transgender health and well-being: gains and opportunities in policy and law. Am J Orthopsychiatry. 2016;86(4):378-383.
- Zaidi D. Transgender health in an age of bathroom bills. Acad Med. 2018;93(1):9.
- Mass Gen Laws Ch 272, §98 (2016).
- Boskey E, Taghinia A, Ganor O. Public accommodation laws and gender panic in clinical settings. AMA J Ethics. 2018;20(11):E1067-E1074.
- Klocke BV, Muschert GW. A hybrid model of moral panics: synthesizing the theory and practice of moral panic research. Sociol Compass. 2010;4(5):295-309.
- Gordon G. Transgender legal advocacy: what do feminist legal theories have to offer? Calif Law Rev. 2009;97(6):1719-1762.
- Ross J. How easy is it to change the sex on your birth certificate? Washington Post. May 18, 2016. https://www.washingtonpost.com/news/the-fix/wp/2016/05/18/the-next-frontier-in-the-bathroom-law-debate-changing-birth-certificates/. Accessed December 5, 2018.
- Lee EJ, Gurr D, Van Wye G. An evaluation of New York City’s 2015 birth certificate gender marker regulation. LGBT Health. 2017;4(5):320-327.
- Solomon HE, Kurtz-Costes B. Media’s influence on perceptions of trans women. Sex Res Soc Policy. 2018;15(1):34-47.
- Platt LF, Milam SRB. Public discomfort with gender appearance-inconsistent bathroom use: the oppressive bind of bathroom laws for transgender individuals. Gend Issues. 2018;35(3):181-201.
- Nuttbrock L, Hwahng S, Bockting W, et al. Psychiatric impact of gender-related abuse across the life course of male-to-female transgender persons. J Sex Res. 2010;47(1):12-23.
- James SE, Herman JL, Rankin S, Keisling M, Mottet L, Anafi M. The Report of the 2015 US Transgender Survey. Washington, DC: National Center for Gender Equality; 2016. https://www.transequality.org/sites/default/files/docs/usts/USTS Full Report – FINAL 1.6.17.pdf. Accessed December 5, 2018.
- Breiding MJ, Smith SG, Basile KC, Walters ML, Chen J, Merrick MT. Prevalence and characteristics of sexual violence, stalking, and intimate partner violence victimization—National Intimate Partner and Sexual Violence Survey, United States 2011. MMWR Surveill Summ. 2014;63(8):1-18.
- Herman JL. Gendered restrooms and minority stress: the public regulation of gender and its impact on transgender people’s lives. J Public Manage Soc Policy. 2013;19(1):65-80.
- Singh K, Sivasubramaniam P, Ghuman S, Mir HR. The dilemma of the racist patient. Am J Orthop (Belle Mead NJ). 2015;44(12):e477-e479.
- Padela AI, Schneider SM, He H, Ali Z, Richardson TM. Patient choice of provider type in the emergency department: perceptions and factors relating to accommodation of requests for care providers. Emerg Med J. 2010;27(6):465-469.
- Park JA, Safer JD. Clinical exposure to transgender medicine improves students’ preparedness above levels seen with didactic teaching alone: a key addition to the Boston University model for teaching transgender healthcare. Transgend Health. 2018;3(1):10-16.