In an increasingly large number of states, legislation is being considered, debated, or implemented around the question of who gets to use which bathroom. The core of the argument centers around the needs of transgender people who, the argument goes, should be able to use a restroom that corresponds to their gender. It is important to make a clear distinction here between the terms gender and sex both for their actual meanings and for how they will be used in this piece. Sex refers to the biological, genetic coding for each individual human, most simply established as male and female, based on the sex determining chromosomes: XX for females and XY for males. Gender refers to the socially and emotionally constructed norms that have been associated, perhaps erroneously, with particular sexes. For a simplified example that does very little to parse out the complexity of human sex and gender, a person with an XY chromosome pair who exhibits what our contemporary, western society would consider a male presentation (short hair, a lack of conspicuous make-up or colored adornment, minimal jewelry, wearing clothing such as jeans or shorts, potentially sporting facial hair and displaying more aggressive and assertive behaviour) is the classic male gender, or to use a simple term that sums up all the previous descriptors, a cis-man or cis-gendered person; that is, a person whose sense of gender and outward presentation thereof corresponds to their biological sex.
This question of gender identity is removed from the question of sexual orientation, which is an important distinction to establish. Sexual orientation refers to how a person satisfies their sexual needs and desires and how such a person finds intimate sexual satisfaction. So to add yet another wrinkle for readers less familiar with the terms of gender studies, it is possible for a trans-man (i.e. a biological female who identifies as male) to be either homosexual or heterosexual, meaning that he might desire to sleep with women (heterosexual) or with men (homosexual). And for the more seasoned readers let me of course point out that this treatment is a super simplified discussion of these issues. Of course any person, cis or trans, could also identify as asexual (no sexual attraction), bisexual (attracted to both genders), or any other combination imaginable. The purpose of the categories here is to help the uninitiated reader to find his or her feet in the discussion as opposed to creating hard and fast labels that can be applied to any and all people.
Now that our terms have been established, let’s return to the question of where to pee. In February 2016 Charlotte, North Carolina passed a city ordinance that would add gay, lesbian, and transgender people to a list of protected classes of people, preventing businesses or city government offices from discriminating against those groups. While these sorts of protections are not uncommon in larger municipal areas, the North Carolina state house convened a special session to create legislation to circumvent that local city government. One of the most contested issues in the Charlotte legislation, even among the lawmakers in that city, centered on specific language that would allow transgender people to use public restrooms that correspond to the gender with which they identify. As the state-level lawmakers gathered to address this ordinance, the question of which bathroom could be used by what sort of person was center in their response. The language of the state-level bill was more far-reaching that previously imagined and distinctly forbade people from using any bathroom or locker room facility that did not correspond with the gender listed on their birth certificates. The formal language creates a situation where any state law will henceforth supersede municipal laws, and unrelatedly forbids city governments from raising the minimum wage within their municipalities.
So that sets the stage. Now let’s look at the arguments. Since it is impossible to truly assess the motivations of any particular human being, this treatment will only look at the direct issues cited in legal debate and post-legislative media commentary and discussion. Issues of whether or not transgender people are morally reprehensible, deviant human beings, spiritually corrupted, or bound for hell is not relevant to this particular discussion.
The Reasons Against
The primary argument for excluding trans people from bathroom and locker room facilities revolves around the question of safety. The basic breakdown is as follows: Bathrooms and locker rooms are intimate spaces where people can be seen in varying degrees of undress and engaged in very private and personal activates like relieving themselves, showering, or changing. Since the potential for nudity, however brief in the modern setting, is ever present and the activities of such an intimate nature, males and females should be divided so as not to incite any unwanted attention, sexual arousal, or outright aggression. We can see from the position points that the structure of the argument presumes several important positions:
1.) Males would take advantage of the intimate nature of bathrooms and changing rooms to leer, self-gratify, grope, or sexually assault females if placed in close proximity
2.) Females are in need of protection from the above-mentioned savage males
3.) As long as the sexes are separated, then the risk of any of the above illicit behaviours is nullified or at least mitigated.
The presumptions of the position points are distinctly conservative and assuming certain fundamental qualities of both men and women that are certainly open to debate, but would be better addressed in a different essay. Also, it is certainly true that we could reconstruct the position points to talk about females leering at males, taking advantage of them sexually, or groping them unwantedly if females were allowed in close proximity, but the rhetorical appeal of that set-up falls nearly flat. That is not to say that there are not many notable instances of men being assaulted by women and of boys being abused by women and girls and that those instances of abuse are as damaging and impactful as the more common occurrence of sexual assault on women. However, I think it goes without saying that framing the argument around male assault is less impactful.
So if trans people are allowed into these intimate spaces, the argument continues, it will allow one or both of the following things to occur:
1.) Men who “feel” that they are women will be able to freely enter a space that is supposed to be safe and protected for biological women, thereby violating the protection of that space by introducing maleness in the guise of femaleness into the space.
2.) Any male who has ill-intent toward the women in these intimate spaces will be able to walk into the facility with whatever malign purpose, and once identified as a male who “does not belong,” he would be able to claim that he is actually a woman and has the right to remain. The examples for this situation that are often cited are a man in seattle who was in a women’s locker room changing while a group of young girls were changing for swim lessons, a whole host of men wearing wigs and dresses who were arrested for filming women using the restroom, or men who used the same physical disguises to gain entrance to restrooms for “illegal voyeuristic purposes.”
So How Do the Reasons Play Out?
Let’s unpack these concerns. The first concern is actually rooted in a more fundamental question about what it means to be a man or a women. This question is a complex one about which many great books have been written and many case studies compiled. The best assessment that this writer has heard boils down to a simple internal analysis. I identify as a cis-man. How do I know that I am a man (with all the social and emotional material that comes with that label)? I just do. Despite that knowledge, I do not care for sports. I do not like working on cars. I am not particularly aggressive. I am very large and very strong. I have a beard and a penis. I very much like musicals and flowers. I enjoy working with my hands and getting dirty, but after I clean up, I like my hair to be just right. I like dancing and being sassy but I also enjoy the rigor of intellectual conversation and most people I know would describe me as a serious person. I find myself teary-eyed in most emotional films that I watch. I have an X and Y chromosome. If I could figure out how to wear a skirt that is not a kilt or a sarong and combine it with a nice button-up shirt, I would do it in a heartbeat. I love perfectly tailored suits. I like to have painted toenails. So which of these characteristics make me a man? Which make me a woman? I’m not blind to the world that we live in and neither are you, so I can imagine which ones you would put in which category. And yet as you place each fact in a certain column, it immediately begs the question: why? Why is liking sports male or flowers female?
Again, much writing has been done on this question, but I address it here because it is essential to understanding the first consequence mentioned above. That outcome presumes that trans people cannot be anything other than their chromosomes, that their gender is bound to the most arbitrary of factors, the invisible chemical sequence that drives some cells to develop in different ways from others. All of our human developments, our critical minds, our music and art and poetry, our language itself invites us to understand that we are more than the sum of our parts, however fundamental modern science may suggest those parts are. For the entirety of our time on this earth we have been working to reach beyond our biology, so why would a trans-person’s trajectory toward self-determination be any different from a cis-person’s?
The first consequence we have been discussing is for me an overly simplistic and self-limiting perspective on human potential and people who hold fast to that position are, in this writer’s opinion, clutching tightly to increasingly antiquated views of human sexuality and are confounded that a man would want to be a woman. The idea is repulsive and unconscionable and this revulsion drives the need to maintain the status quo.
Despite the vitriolic appeal of such a posture, most arguments being levied by people who are actually less discriminatory or at least less comfortable admitting it, center on the second consequence: that deviant cis-men will use the trans argument to gain access to intimate spaces to assault and abuse women and children. This argument seems initially to be very compelling. How would women and children cry foul if a man with ill-intent does enter their private spaces if he can just say that he “feels” like a woman and so he belongs? To answer the question we need to first point out that voyeurism, groping, picture taking, assault or any other activity that is illegal outside of a bathroom is still illegal inside of a bathroom, regardless of who is committing the crime. So in many of the bathroom “peeper” or exposure cases that are cited as ways these trans-inclusive laws will allow cis deviants to attack women and children, the men were found out when a woman saw a red recording light under the stall or when a bag was pushed under the wall of an adjacent stall and a woman realized it contained a camera. A third man was dressed in women’s clothing but was exposing himself to other women and girls in the bathroom. In all of these situations, the activity is what alerted the women to the transgression not the presence of a man in the bathroom, wig and dress or not. In fact, some women even reported that they didn’t know a man was in the bathroom at all. We should remember that women use stalls for relieving themselves and so cannot see the other people in the stalls beside them regardless of gender. So if a woman were doing the illicit recording, the glowing red light would still have been the indicator of wrong behaviour, not the person’s apparent gender. Perhaps more importantly, both of the cases cited above occurred in bathrooms with the current, biologically aligned access requirements not the new trans-inclusive ones.
Perhaps the most compelling example cited in some media outlets concerns the Seattle man mentioned several paragraphs above who was using a women’s locker room while a group of girls were changing for swim practice. When he was approached, he said that Seattle’s new trans-inclusive laws allowed him to be there and so no further action was taken. Firstly, the only source for this story is a conservative media outlet that provides no real details or context. Was the man actually a voyeur? Was he doing something lewd? Was he a man or was he a trans-woman who didn’t conform to expected physical expectations? It’s difficult to say without more information but it’s easy to see how such a story could raise the hackles of average folk: why would a man want to be in a girls locker room but for deviant reasons? If he looks like a man, he must be a man? Again, it’s difficult to say. Maybe he is a criminal; maybe he likes the shampoo in the ladies room more; maybe he is really a she who is beginning the process of transitioning presentation. Even presuming the worst-case scenario, we have only one viable example of exploitation of the new rules and many more examples of deviant behaviour happening with the current rules.
Despite all of the suggestion to the contrary and protestation against changing the system, there is little to no evidence that bathrooms or locker rooms are completely safe under the current rules, as the above examples illustrate. This statement is not intended to cause paranoia but merely to point out that safety is an elusive target. All of our lives are in constant jeopardy every day, and we must of course make personal choices and encourage legislation publicly that furthers our need to protect ourselves from very real dangers. It is not at all clear however that by excluding trans people from restrooms that we would be any safer than we are currently. Will we demand there be bathroom monitors in every public facility? Will we take it upon ourselves to interrogate every person in the bathroom who looks a little too delicate to be a “real man” or a little too leathery and gruff to be a “real woman?” How would we propose to maintain the safety of our bathrooms that are already not any more safe than any other public place?
What About the Trans People Themselves?
If we are actually concerned about safety, then we should certainly be considering what happens when a trans-woman has to use a men’s facility, say at a gas-station truck stop in rural Mississippi. Perhaps the trans-woman is lucky enough for the facility to be empty so she can use the toilet in peace or maybe it has some cis men using the bathroom who find it ridiculous that there is a man wearing a dress in their bathroom. Maybe those men verbally assault the trans-woman, maybe they attack her, maybe they decide they want to see if she has lady parts to go along with her lady dress, or maybe they only give her a disgusted look – the same look she gets everywhere she goes because she is trying to be herself in a world that all too often decides that she isn’t worthy of that opportunity.
The question of safety extends to trans-men as well. Imagine if this guy is required to use women’s facilities because of the gender listed on his birth certificate. Imagine the number of times he will be accosted by women thinking that he doesn’t belong in the restroom (ummm, because he doesn’t), or the potential problems, even life threatening ones, with security guards or police officers who might respond to a cis woman’s complaint of a man in the restroom.
The crux here is that transgender people are not an easy group to unravel. For many of us cis people, feeling transgender is something we can’t understand and because of that ignorance, we are quick to dismiss and discard the experiences of these people. And when we disregard people, we are able to use emotional and inflammatory arguments about safety to keep us from feeling our bigotry and/or our lack of empathy and compassion. The arguments for safety are flawed and only belie a deeper discomfort with who and what trans-people are as well as promoting a self-aggrandizing sense of our individual power to avoid danger. Actively denying trans-people the right to use bathrooms and locker rooms that correspond to their gender identities serves only to put those people in harms way, both physically and emotionally, while building a false sense of security around the protections afforded people in those intimate spaces.