DES MOINES -- Two Iowans born as males are the first in the state to win Iowa Civil Rights Commission cases that allow them to use women's restrooms in public places.
But a third transgender Iowan, Jessica Smalley, lost her battle to use the women's facilities at the YMCA in Burlington, Iowa.
The three cases are the first to advance through a civil rights complaint process since 2007, when lawmakers added gender identity to the state's nondiscrimination policies. And their vastly different outcomes foreshadow additional legal challenges, according to both advocates and opponents of the law.
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These cases, along with milestones such as the University of Northern Iowa's crowning of transgender student Steven Sanchez as its homecoming queen this month, bring visibility to a new set of rights issues in Iowa.
"Civil rights for black people didn't happen overnight, and it won't happen overnight for trans people, either," said Jodie Jones, an Iowa City transgender who won a dispute over whether she could use the women's restroom at the Johnson County Courthouse. "But I feel like we've moved the ball forward."
But moments of acceptance can be accompanied by challenges, Iowa's transgender residents say. Sanchez told The Des Moines Register last week that he feared using the women's restrooms on the college's campus because, he said, university policies are unclear.
"The new law does require ... that individuals are permitted to access (restrooms) in accordance with their gender identity, rather than their assigned sex at birth, without being harassed or questioned."
- Sara Stibitz, a civil rights specialist Iowa Civil Rights Commission
Confusion about the law is compounded by little court precedent on the issue, said Beth Townsend, director of the Iowa Civil Rights Commission.
Smalley's case was the first in Iowa to advance through a public hearing process, and the administrative law judge who heard the arguments decided against her.
"The Iowa Civil Rights Act cannot be interpreted so broadly to give a biological male, albeit one who identifies herself as a female, the right to change clothes with and shower in a female locker room," Administrative Law Judge Jeffrey Farrell wrote in his opinion on the Smalley case.
But other authorities have reached different conclusions. The civil rights commission has resolved two cases in favor of transgender Iowans. In addition to Jones, the commission also helped rural Humboldt County resident Charlene Adams win the right to use a restroom that corresponds to her gender identity.
Commission officials believe the Jones and Adams cases are the first two successful conciliation agreements in Iowa that deal with gender identity.
Charlene Adams, born as Charles Adams, said she felt like a girl early in life and slowly transitioned into becoming a woman. Adams won the right to use a restroom that corresponds to her gender identity.(Photo: Andrea Melendez, The Des Moines Register)
"The new law does require ... that individuals are permitted to access (restrooms) in accordance with their gender identity, rather than their assigned sex at birth, without being harassed or questioned," Sara Stibitz, a civil rights specialist with the state commission, wrote in February when she maintained that probable cause existed to show Jones had been discriminated against.
The number of gender identity complaints made to the Iowa Civil Rights Commission has increased from six in the fiscal year that ended June 30, 2008, to 51 in the year that ended June 30, 2013. Townsend said the spike at least partially stems from an increase in awareness about the Iowa Civil Rights Act.
Fifteen states and Washington, D.C., prohibit discrimination in public accommodations on the grounds of sexual orientation and gender identity. But just a few cases nationally have challenged the application of laws that protect gender identity. Additionally, the federal government now advises some agencies about how to handle the issue.
Cases draw activists' attention
Each of the three cases has garnered attention from opponents and advocates of the law.
Smalley's case is getting the most scrutiny from civil rights advocates, who say the decision is an unfortunate precedent that they believe is grounded in uneducated beliefs and irrational fears.
"It's astonishing that Iowa could get this so wrong," said M. Dru Levasseur, transgender rights project director for Lambda Legal, a national organization that works to achieve full recognition of civil rights of lesbians, gay men, bisexuals and transgender people.
The American Civil Liberties Union says there's no clear answer about whether anti-discrimination laws cover a transgender person's desire to use a restroom consistent with his or her gender identity. One reason: Not many courts have considered the question.
Chuck Hurley, a vocal opponent of Iowa's 2007 law, is dismayed by the two conciliation cases that allow transgender women - one of whom is still anatomically a male - to use public restrooms.
Hurley says he is concerned that new policies will allow voyeurs and sex offenders to simply claim a different gender identity to gain access to areas where women and children are vulnerable.
"If a pervert or a stalker or a person who's wanting to be a voyeur or worse were to decide one day, 'Hey, I feel I'm a different sex,' they could use a women's bathroom - and that's very problematic," said Hurley, a former Republican lawmaker who is president of the Iowa Family Policy Center. "That opens a can of worms for perverts to throw their weight around and make trouble for people."
Donna Red Wing, executive director of One Iowa, a civil rights group focused on gays and lesbians, believes the cases highlight the
"There is really no record of peeping Toms and predators dressing up to get into bathrooms to look at folks," said Red Wing. "That's just a weird and odd response."
Use of YMCA locker room disputed
Smalley's case involving the YMCA in Burlington exemplifies some of the social and legal issues that people and businesses wrestle with regarding transgender rights.
Smalley, 52, was born as James Steward Smalley and began living as a woman in 2008, having legally changed her name to Jessica Lynn Smalley. She still has male anatomy but takes estrogen and has developed breasts.
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Smalley met with Burlington YMCA employees in September 2009 after her doctor advised her to become more physically active as a way to improve her health. She was initially shown the women's health service center. After voluntarily confiding in the staff about her gender identity change, Smalley returned and was given a tour of the women's locker room to assess concerns about whether she could use the facilities, according to state records from a public hearing on the case.
Smalley agreed to change clothes behind the curtains in the shower stalls of the women's facilities and not to expose herself to others. She was asked by Deb Mulch, the YMCA's director, whether she wished to join, public hearing records show.
But Mulch later spoke with YMCA board members who expressed concern that other female YMCA members might think Smalley's presence would create a hostile environment, the documents show.
"If a pervert or a stalker or a person who's wanting to be a voyeur or worse were to decide one day, 'Hey, I feel I'm a different sex,' they could use a women's bathroom - and that's very problematic."
- Chuck Hurley, president Iowa Family Policy Center
Upon consulting with the national YMCA and reviewing that organization's guidelines on the issue, the Burlington YMCA decided it should determine which locker room was appropriate based on whether a transgender member has had sex reassignment surgery. Before sex reassignment surgery, the person would use either a private family locker room or the locker room of the gender assigned at birth. After surgery, the person would use the locker room of his or her new gender.
In October 2009, YMCA employees gave Smalley three choices: Use the men's locker rooms, use the gender-neutral locker rooms or change at home.
The gender-neutral room, unlike the other locker rooms, doesn't contain a toilet or sink, and it's possible that it would be in use at times when she wanted to shower, Smalley said. The gender-neutral facility also does not have access to the YMCA's gender-specific saunas and whirlpools.
Gender-neutral locker rooms at the Burlington, Iowa, YMCA don't contain toilets or sinks. To use a toilet, Jessica Smalley would have to go to the men's locker room, but she hasn't used a men's room since coming out as transgendered years ago.(Photo: Mary Willie, The Des Moines Register)
Smalley ultimately decided that none of the three options was acceptable and, instead of joining, filed a civil rights complaint against the YMCA.
"I told them: 'If you send every woman to the men's locker room to get dressed, then I'll have no problem with this,' " Smalley said.
Mulch, the YMCA's director, said she and her staff tried diligently to resolve the issue. They continue to welcome Smalley as long as she uses the men's facility or the gender-neutral changing area.
"We never denied her membership," Mulch said. "She was only denied access to the (women's) locker rooms."
YMCA: We don't discriminate
The YMCA of the USA did not respond to inquiries from the Register about the Smalley case. However, evidence provided during the public hearing included a "white paper" used by the national YMCA to address transgender issues.
That paper noted that while some individual YMCA policies differ, the general guidelines of the national YMCA are consistent with the policy adopted by the Burlington YMCA. The YMCA used the document to help establish that it does not discriminate, and that the policy is applied evenhandedly.
"There is very little history with respect to the addition of 'gender identity' to the Iowa Civil Rights Act in 2007. But surely Iowa's Legislature did not intend to require all places with locker rooms and restrooms, particularly when they serve minor children as in the cases of a YMCA/YWCA, to allow anyone who simply expresses a gender identity different than their anatomical body parts access to whatever locker rooms they wish," Mary Funk, a Des Moines attorney representing the Burlington YMCA, wrote in a brief to the court.
The co-sponsors of the 2007 bill that added gender identity to Iowa's civil rights act told the Register that the intent of the law was to allow people like Smalley to have the ability to use facilities that correspond with their gender identity - regardless of whether they have had sex reassignment surgery.
"My feeling is that this is an error in regard to the YMCA as well as the judge who ruled in this case," said Iowa state Sen. Matt McCoy, one of the co-sponsors.
While the deadline for appealing the judge's ruling has passed, the ruling stands. Farrell wrote in his decision that he sympathizes with Smalley, who he said "has honest and understandable concerns with using the male locker room."
"Notwithstanding my sympathies, the Y did not commit a violation of the civil rights act by refusing to allow her access to the female locker room," Farrell wrote.