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America's First Transgender Judge Talks Anti-Trans Bathroom Laws

By Casey C. Sullivan, Esq. on June 01, 2016 | Last updated on March 21, 2019

America is obsessed with where transgender people poop. In March, North Carolina made it a crime for anyone to use a bathroom that doesn't correspond to their sex at birth -- ostensibly to fight off the non-existent plague of predatory men in dresses lurking behind the commode. That set off a showdown with the Department of Justice over what rights are afforded transgender people, who simply want to pee in peace. Just yesterday, the Fourth Circuit urged a quick appeal to the Supreme Court in a case over transgender bathroom access.

But as the fight over trans rights enters courtrooms across the nation, only one judge can speak from her own personal experience. Phyllis Randolph Frye is an associate judge in Houston's municipal courts and the first openly transgender judge in the country. She recently sat down with the ABA Journal to discuss the latest front in transgender rights: the bathroom.

40 Years of Fighting

Judge Frye's fight for greater rights dates back four decades, the judge noted in a discussion with the ABA Journal's Jenny Davis. "I did come out of the closet in '76," Frye says. "At the time, there was a law that made me subject to arrest. I fought it, I got it changed. I went to law school while I was still illegal out of the closet. I went down to the courthouse as a lawyer, and I was the only out lawyer down there. I've been the only out lawyer a lot of different places. It's been a struggle, but I made it."

And indeed, it was a struggle. When Frye first began transitioning, the reaction was uniformly hostile, according to a profile in the New York Times:

[S]he got her house egged, her tires slashed, and her driveway spray-painted with obscenities. Teenagers openly mocked her, the engineering profession blackballed her and the federal government rejected her for a job because of her "desire to impersonate the opposite sex."

Undeterred, Frye has spent her life advocating for greater rights for transgender people. She was one of the first to identify the need for specific a legal theory and agenda to advance transgender rights, organizing lawyers and conferences to help advance the cause. Shannon Minter, the legal director for the National Center for Lesbian Rights describes her as "the grandmother of our movement."

The Bathroom Front

So, how does Frye view the current bathroom blow up? She started by attacking the idea, proposed by some advocates of anti-trans bathroom laws, that "some man will claim to be transgender for the day," in order to assault women in the bathroom. "Isn't all of that already against the law? Isn't that already in the criminal statutes of all the states in the Union?" That claim is a "hoax issue," according to Frye. "It's all silliness."

This isn't Frye's first run-in with bathroom issues, either. In 1980, Frye took an internship with the Houston D.A.'s office as a 3L -- during a time when "cross-dressing" and using bathrooms not for your birth gender were both illegal. Frye managed to get the cross-dressing law overturned a week before her internship, but she was still given a separate bathroom, so far from her desk that she finished her internship with a severe bladder infection. Further, when she first transitioned, she stuck to the men's room -- until she repeatedly faced physical attacks.

The solution to today's blowback? LBGT people need to continue to come out of the closet, at work, with families, and with friends, Frye urges.

You can watch the full interview here.

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