North Carolina recently adopted a statute that requires people to use public restrooms consistent with the sex assigned to them at birth, and other jurisdictions are debating similar proposals. Legislators in Kansas have proposed a bill that would require financial compensation to people who encounter people using restrooms that do not reflect the sex assigned to them at birth. To avoid those outlays, the operators of those restrooms and locker rooms will have to monitor the premises closely.
In fact, a lot of gender policing already goes on in public restrooms. Both men and women face hostility when they don’t seem qualified to use a particular lavatory because of their appearance. “Excuse me,” the gender police will say, “but this is a ladies’ room” or “the men’s room,” as the case may be. Sometimes, the remarks are cruder, more direct, or laced with threats, but states considering restroom and locker room restrictions are not usually worried about protecting people with atypical gender expression. They worry more about danger at the hands of those people, or at least they say they do.
These legal efforts involve no small amount of posturing. Even the states moving to restrict access to rest rooms and locker rooms acknowledge the need for fluidity in sex classifications. They admit as much when they allow people to change the classification of sex assigned to them at birth. There’s a social contradiction in both permitting this kind of change and also obstructing its effects. In effect these states are saying, “Yes, you may change your sex as known to the state. Just follow certain rules, such as giving us a physician’s report, and we’ll make those changes in your records. Once that’s done, you may be known as male where you were formerly known as female or be known as female where you were formerly known as female. However, you may not restrooms consistent with that new designation.”
These legislative efforts have not gone forward without resistance. These laws – and North Carolina’s additional restrictions against gay, lesbian, and transgender antidiscrimination protections – have prompted certain businesses and musicians to boycott the state. President Obama has criticized the laws. In defending the restroom restrictions against this criticism, some conservatives say they want to protect the public from voyeurism and, worse, sexual assault. For example, some politicians have said that transgender women are really men parading into women’s spaces. Posing as “women,” the argument goes, these sexual changelings catch actual women off guard, opening them to the dangers of sexual leering and sexual assault. As long ago as 1979, Janice Raymond raised this worry, among others, against sexual reassignment: She argued that males would intrude into women’s space by disguising themselves as women, simultaneously trivializing women’s bodies and endangering them. This stance now proves itself the last redoubt against transgender identities, and its offer of protection is emotionally powerful, if we imagine transgender women as men in disguise, with all the power differentials between men and women left intact. Even if some women might be able to defend themselves against “women” whose true nature is cloaked from view, children and adolescents won’t be able to do so equally well, and more’s the horror, or so the argument goes.
But there is more to the story when it comes to identifying stealth predators. If transgender people put the public at risk in restrooms and locker rooms, so do gay men and lesbians, at least according to expressed concerns about stalking and sexual predation. In the same way that not all transgender people are identifiable as such, not all gay men and lesbians are identifiable even to those people who imagine themselves experts at “gaydar.” Some transgender people fly below the social radar, as do many gay men and lesbians. For this reason, anyone entering a public restroom or locker room cannot know for sure that transgender people, gay men, or lesbians are not already there alongside them. This uncertainty is exactly what hones the anti-gay and anti-lesbian edge in bills ostensibly aimed at transgender people.
Legislators know that gay men and lesbians are in public restrooms, and they also know that the same malevolence they attribute to transgender people can be attributed to gay men and lesbians, too, pretty much without permutation, leaving every gay man and lesbian under sexual suspicion. It is not a coincidence that some violence perpetrated against gay men and lesbians in certain public venues is justified as self-defense, as protection from unwanted sexual interest and behavior. The logic by which legislators want to keep rest rooms free from transgender people also commits them to keeping those same places free from gay and lesbian people too.
Why these legislative efforts to cordon off restrooms now? Are assaults by transgender men and women on the rise in locker rooms? Or are they more about symbolism and the assertion of gender values in the face of social change? These efforts seem to me to be an indulgence in gender nostalgia, an expression of longing for an imagined past in which men and women lived without any traits that threw expected gender roles into question. Even so, checking birth certificates at the lavatory door won’t go very far in blunting the widespread social change that has unfolded – that should continue to unfold – in the wake of attention to human variation in anatomy, genetics, sexual orientation, gender identity, and social roles.
For example, in 2013 the American Psychiatric Association set aside its diagnosis of “gender identity disorder” in favor of “gender dysphoria,” a shift that normalized cross-sex identities by focusing clinical attention on the discomfort of gender nonconformity rather than on the nonconformity itself. With the 2015 Supreme Court decision in Obergefell v. Hodges, the U.S. government withdrew from making the social good of marriage available according to the sex of the parties involved.
It is hard to imagine turning back the clock on this social development even if the occasional county clerk or attorney general moves to obstruct same-sex marriage licenses. Public restrooms and locker rooms have flared up, however, as a focus for debate about access to social goods according to one’s sex as known to the state. As a matter of sexual logic, though, we have already had and settled this kind of debate: If gay men and lesbians are trustworthy enough for public rest rooms and locker rooms, then so are transgender men and women.
Timothy F. Murphy is professor of philosophy in the biomedical sciences at the University of Illinois College of Medicine and visiting associate dean for academic affairs at the University of Illinois at Chicago Honors College.