VIDEO: Issues of Power, Not Bathrooms

by Shay-Akil McLean

Issues of Power, Not Bathrooms

On February 22nd, 2017 Agent Orange’s administration revoked the transgender protection guidelines on Title IX in a “Dear Colleague” letter from the ironically named Department of Education (DoE) and Department of Justice (DoJ).  The letter stated that it would not be utilizing the interpretations of Title IX that the Obama administration had utilized.  Less than two weeks later the Supreme Court announced that it would not be hearing the case of teenager Gavin Grimm against Gloucester County School Board in Virginia.  The DoE and DoJ’s decision makes it possible for states and local school districts to deny the rights of transgender and non-binary gender students despite their resistance.  Without the DoE and/or the DoJ enforcing these guidelines, transgender and non-binary students lack another form of protection against discrimination.  This makes it more difficult for transgender and non-binary gender students to sue educational institutions for not allowing them to use the bathroom that matches their gender. They will have to battle it out in lower courts for the next few years.  Without federal protections, transgender and non-binary gender students are without sufficient support from the state to defend their rights to self-determination.  Such actions make room for states to negotiate the legitimacy of transgender and non-binary students’ knowledge about their own gender and bodies.  To defer decision making power to states and local school districts then allows room for states to continue segregating bathrooms by the sex criteria of genitalia.  For the DoE and the DoJ to not enforce the previous guidelines is to make space for negotiating the rights of trans and NBG people away.  That space was widened when the Supreme Court said that it would not be hearing Gavin’s case.  

[Read the two page “Dear Colleague Letter” issued by the DoE and DoJ on February 22nd, 2017]

Upon first glance this appears to be about the use of public ‘sex-segregated facilities’ but it’s about much more.  Sex segregated facilities are merely one site of an important struggle between the right of transgender and non-binary people’s power to navigate space as their respective gender versus state institutions’ aim to exercise power over trans and non-binary gender persons based on reducing them to a binary classification of genitalia.  As stated by historian Margot Canaday, “The state does not just direct policy at its subjects; various state arenas are themselves sites of contest over sex/gender norms” (2009:5).  Understanding this requires that we place this social problem into the context of the longer history of the state’s passage of regulatory measures that have directly and indirectly policed sex and gender non-conformity.


It’s important for us to ask ourselves: what exactly is being negotiated here?  As argued by historian Robert W. Gordon, “The power exerted by a legal regime consists less in the force that it can bring to bear against violators of its rules, than its capacity to persuade that the world described in its image and categories is the only attainable world” (1984:109).  This is an issue of power and certain people are under the impression that the biological essentialist understandings of gender and sex in modern society are the only truths that they are willing to abide by.  So let’s return to the definition of sex.  Sex is a determination made through the application of socially agreed upon biological criteria for classifying persons as females or males.  The criteria for classification can be genitalia at birth or chromosomal typing before birth, and they do not necessarily agree with one another (West & Zimmerman, 1987:127, 133). But it’s important to recognize that placement in a sex category is achieved through socially required displays that proclaim one’s membership in a sex category.  Thus, one can claim membership in a sex category while lacking sex criteria. Gender is what West and Zimmerman define as the “activity of managing situated conduct in light of normative conceptions of attitudes and activities appropriate for one’s sex category” (1987:127).  Gender is constructed through our actions and through our actions/deeds we proclaim membership into a sex category.  Gender qualifies as a satisfactory rationale for entry into sex segregated facilities since a person can have membership in a sex category while lacking sex criteria.  Sex segregated facilities can be accessed by whoever fits the set of ‘managed situated conduct’ that is their gender.  Sex is then not reducible to genitalia.  What this means is that there is no ‘formal public process’ required since placement in a sex category is achieved through a person’s power to control their own behavior/actions and define themselves.  To claim that sex is ‘unambiguously biological sex’ excludes the rest of the definition of “sex” and presents a theory (idea) about the world that does not match human practice/action.  Which leads us to a better and more important question: Why do we (as a society) negotiate the existence of people who already exist?  Why do we entertain such notions as legitimate?


Denying the right of transgender and non-binary gender people to exist and use public restrooms & locker rooms is a regulatory maneuver of a legal regime aiming to persuade the world that they are not convinced of the validity that transgender people’s knowledge of their own bodies and egender.  This opens up the institutional grounds for states to supersede the rights of trans and non-binary peoples to define themselves and enforces biological essentialist classifications instead.  Such actions are part of America’s long history of “…the state’s identification of certain sexual behaviors, gender traits, and emotional ties as grounds for exclusion…” (Canaday 2009:4).  For the state to not enforce those guidelines is for them to claim that only those who live and procreate in accepted cisheteronormative manners will be provided with the institutional and systemic protection provided to citizens.  And what do such policy decisions do? They set precedence for what is and what is not acceptable behavior.   Such state actions then legitimate images of humanity that exclude transgender and non-binary gender persons contributing to this year’s growing list of murdered Black Transgender women like Alphonza Watson in Baltimore, Maryland, Keke Collier in Chicago, Illinois, JoJo Striker in Toledo, Ohio, and Chyna Gibson and in New Orleans.  It opens the grounds for transgender and non-binary people to not be allowed the same right to defend themselves like CeCe McDonald and Ky Peterson.  By not upholding the rights of transgender and non-binary students to utilize the public facilities that match their gender, the DoJ and the DoE is making room for the interpersonal, institutional, and systemic harassment, mistreatment, and violence against trans and non-binary peoples.  

We have failed community members because we have refused to collectively take the steps required to change the way we speak about people, the way we treat people, we backed down from holding one another accountable to the non-negotiability of the humanity of trans people.  And because of that failure, more Black transwoman have been murdered.  Not only does this have a detrimental impact on the lives of transgender, intersex, and non-binary children, but it destines them to a life of violence that state institutions are refusing to provide them protections against.  

What is then necessary for us at this present moment is what James Baldwin referred to as “non-cooperation”.  Do not follow procedures that deny someone’s humanity.  I encourage you to choose people over protocol and procedure.  To speak of systems and institutions then is to speak of coordinated collective human action driven by a particular set of logics and ideologies.  That means we have to interrogate how we've been made what Hannah Arendt calls "functionaries and mere cogs in the administrative machinery".  What we DO, what we ALLOW to be said and done around us; ALL of this plays into what we communicate as legitimate and acceptable human behavior.  Coordinated non-cooperation requires that we act in ways that uphold the non-negotiability of the humanity of transgender and non-binary peoples.  But to get there we have to listen to transgender and non-binary gender people.  Our everyday practice must speak to and act towards changing the very transphobic language and social structures (protocols, rules about behavior, etc.) that we've come accustomed to.

Listen, offer your time, your resources, offer up your networks, coin, your presence when needed to stand in solidarity with transgender and non-binary people against others and their institutions that wish to deny us the right to exist as who we are, who wish to enforce their will and interests on us and deny us the right to human agency and human decency. As long as you entertain the notion that everyone has a right to argue about this, you are maintaining the idea that the humanity of transgender and non-binary people is negotiable. This is not up for debate.  Keep in mind that we have children to protect.  Transwomen are women. Transmen are men. Trans and non-binary people exist, have been here, and will continue to be here.


  1. Canady, Margot. 2009. The Straight State: Sexuality & Citizenship in Twentieth-Century America. New Jersey: Princeton University Press.
  2. Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (January 1984): 109.
  3. West, Candace and Don H. Zimmerman. 1987. Doing Gender. Gender & Society (1)2: 125-151.