The North Carolina "Bathroom Bill"

There has been a great deal of divergence of opinion (to put it very mildly) over HB2, the recent so-called “Bathroom Bill”, passed in North Carolina. The bill prohibited local governments from requiring privately-owned establishments to open their public restrooms to individuals of either biological sex who identify as the opposite sex. 

First, I think that there is a misconception about the law: HB2 does not affect people who have had gender reassignment surgery. Many states, among whom are North and South Carolina, will change an individual’s gender on their birth certificate upon request once the surgery has been completed. Since HB2 refers to the gender that appears on one’s birth certificate, the law does not apply to these individuals.

A second thing that I don't believe a lot of people realize is that the issue does not only cover restrooms, or even just dressing rooms at department stores. It also covers locker rooms. Where one might argue some degree of privacy offered by the bathroom or dressing room stall, in a gym locker room, people are disrobing in full view of each other. But I will discuss this more later.

Thirdly, this is important to bear in mind: the North Carolina legislature passed this bill in response to a Charlotte ordinance requiring privately-owned businesses to open their restrooms to people of either sex. This was overreach by the Charlotte city government, and the NC legislature was acting in response to this. The bill also went further to specify that public restrooms at government-owned facilities (including public schools) would be open only to those whose birth certificates identify them as the appropriate gender; in other words, only those identified as male on their birth certificate would be allowed to use the men’s restroom, and likewise for the women’s restroom. However, the bill does not prohibit privately-owned businesses from making their public restrooms gender-neutral if they so choose, as Target has just announced that it is doing; in such cases, the market will decide whether such policies are palatable or not.

Some of my initial impressions about this debate, before delving further into the issue are as follows: First of all, I find it truly bizarre that we actually are at a point in our society that it is necessary to define who uses which restroom; even more so that it is something that people are arguing about. Secondly, I find the shock and anger expressed by many on the Left that the Charlotte ordinance was not accepted with open arms incredulous; should anyone really be surprised that the thought of opening public restrooms and locker rooms to people of the opposite sex might be upsetting to some people? Thirdly, I find it dismaying that those people who have indeed found the idea objectionable have been branded as “bigots” and “hateful”. Disagreeing with someone does not constitute “hate” or bigotry. If anything, it is the frequently obscenity-laced name-calling coming from some of those claiming the mantle of “tolerance” that qualifies as hate.

Perhaps I shouldn’t be surprised by any of this. This should have been predictable given the course that political correctness has taken recently, where words are routinely redefined (“hateful” for example now refers to anyone who disagrees with the politically correct view), and non-approved opinions are forbidden. I’ve discussed this culture of “tolerance” (which is anything but tolerant) in a previous post, so I won’t rehash that part of the argument here. However, there are several additional things that bother me about the current debate.

Following are a few of my thoughts as to why the argument for requiring public restrooms to be gender-neutral falls apart under its own weight:

I.  There is no “right” not to be offended.

Seriously, it just doesn’t exist. Freedom of speech and freedom of thought are held among the most sacred of rights in American political culture (at least they have been until recently), and so long as we value the free exchange of ideas, being offended is virtually guaranteed for any given person at some point or another.

John Stuart Mill eloquently stated the danger of silencing unpopular opinion in his 1869 essay “On Liberty”:

“…the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

If we silence the expression of opinions, even those we find repugnant, we ultimately lose our ability to find truth (which, to some of us, is still important). We can disagree, we can even disagree passionately, but we must never use the law to attempt to force those with whom we disagree into silence in order to avoid being offended. Since nearly any worthwhile speech will offend some person somewhere, the net effect would in essence silence all but the most banal speech (if even that would survive).

Consider further, however, the matter at hand. Pretend for a moment that there is indeed a right to not be offended. A large part of the drive behind gender-neutralizing bathrooms is because, for example, a man who identifies as a woman would be offended by being forced to use the men’s restroom. Therefore, advocates would seek to protect him from being offended by requiring that he be allowed into the women’s restroom. The individual in question is therefore enfranchised because he no longer has to bear the perceived (to him) indignity of using the men’s restroom.

However, as has been demonstrated (again, amazingly, to the great surprise of some), many women object to sharing their restroom with an individual who is biologically male. To put it in somewhat crass terms (for which I apologize, but apparently we are to the point where such depictions are necessary), while some women may not have a problem with this, there are many women who would be very much offended by having a biological male whom she does not know standing up in the next stall while she sits on the toilet with her panties around her ankles. Note again that this law applied to gym locker rooms as well, which does not even offer the meager privacy of a stall. Therefore, the requirement that has been passed to protect one individual from being offended has resulted in the offending of another individual. Therefore, if there were indeed such a right as one to not be offended, the rights of the woman in the other stall have been violated.

In addition to freedom of speech and thought, equality under the law is also one of the sacred rights under our political system. Therefore, the offense to the woman in the other stall cannot be simply disregarded in the rush to “protect” the biological male identifying as a woman from being offended. As such, the policy of requiring public restrooms to be gender-neutral, insofar as it is driven by a desire to prevent offense, defeats its own purpose.

                                                              

II. It sacrifices an established right, the right of privacy, for the imagined right of non-offense.

[I understand that some people do object to the concept of there being a constitutional right of privacy. While I disagree with how it has been applied in some cases (more on that momentarily), I do believe that the Fourth Amendment strongly implies it. However, regardless of whether one agrees with privacy being an “established right”, the point is that those advocating for requiring gender-neutral public restrooms do, and that forms the basis of my argument.]

Let us return to the “woman in the other stall” from my previous example; to make the discussion easier, let’s call her “Nancy”, and the man identifying as a woman “Stan”. Stan has not had gender-reassignment surgery (if you need help visualizing this that means that he still retains his “male parts”). Stan objects to having to use the men’s locker room at the gym to shower and change, so, under the ordinance that Charlotte originally passed, he must be allowed to use the women’s locker room. Nancy is changing into her workout attire when Stan enters and removes his dress at which point Nancy sees that Stan is indeed… Stan. As in our previous example, Nancy is offended, but that isn’t the point here. The point is that Nancy is disrobed, contrary to her wishes and by the force of law, in front of a biological male, and she is likewise getting “the full Monty” from Stan, again by force of law and against her wishes. Her reasonable expectation of privacy from the opposite sex has been violated. Other than in her own home, where does a woman have such an expectation of privacy from male eyes than in a restroom or a locker room? 

This is an important distinction: the Charlotte ordinance carried the weight of law. If it were simply a matter of Nancy's gym enacting a policy to have gender-neutral locker rooms, then Nancy would have the option of canceling her membership and changing to a gym that does not have this policy. But if it is a matter of law, Nancy must either sacrifice her privacy or be forced to not go to any gym at all. This is unacceptable.

                                                                                                                                            

Here is the point: the right to privacy is being in effect minimized by those advocating for gender-neutral restrooms, yet, based on this very same right to privacy, many of these same advocates will argue "my body, my choice" (which is an argument based on the right to privacy) in defense of abortion. 

The Roe v. Wade decision, which declared abortion to be legal (again, I don’t agree with the decision, but that is beside the point), centered on the woman’s right to privacy being balanced with the right of the unborn child to life. The decision stated that so long as the unborn child was not viable (could survive outside of the womb), the woman’s right to privacy took precedence. (Note this is contrary to a statement recently made by Hillary Clinton that an unborn child does not have rights under the law. She clearly has either never read the decision or did not understand it.)

Now, if Stan’s right to not be offended (which does not exist) outweighs Nancy’s right to privacy (which, at least so far as the law is concerned, does exist), then what does this imply regarding privacy rights in other areas, including abortion? In other words, it is not logically consistent for someone to violate Nancy’s right to privacy by insisting that Stan be allowed into the women’s room with her in one breath, then claim “my body, my choice” in the next. You cannot claim for yourself what you deny for Nancy, then berate Nancy for desiring it. Or, to use an old cliché, you can’t have your cake and eat it too. 

III. It endangers women and girls.

The kneejerk reaction to this argument that I have seen is to claim that women and girls are in no danger from transsexuals. That is not the point, however. The issue is that gender-neutral restroom policy would open the women’s room to anyone who “self-identifies” as a woman. I suspect it would not take very long at all for a sexual predator to figure out that he can simply claim to self-identify as a woman to gain entrance to the women’s restroom. Imagine not only the danger to Nancy, but suppose Nancy sends her daughter to the ladies’ room at a restaurant alone where she encounters a man who is up to no good. Here is an instance where this happened in Toronto.

Now, one may argue that such things could happen anyway. A male sexual predator could disguise himself as a woman or by some other means clandestinely enter the women’s restroom, as has in fact occurred (one recent example). But does the fact that such abuse could occur anyway justify opening public restrooms to either biological sex? No, it does not, any more than the fact that carjackings sometimes occur at service stations and at traffic lights justifies picking up hitch hikers. Just because the risk of something occurring exists anyway, that does not mean that we “might as well” implement a policy that increases the risk.

My point is that a sexual predator could claim to identify as a woman in order to gain entrance to the women’s restroom to indulge his urges, and, as was pointed out above, this has happened where the gender-neutral restroom policy has been implemented. There does not exist a litmus test that could be used to weed such individuals out from “true” transsexuals (if there were, it would not only be impractical to apply but probably quite intrusive). Essentially, someone need only claim to identify as a woman to gain access, and even this would not be entirely necessary, as there certainly appears to be no monitoring to be sure that men who enter the women’s restroom even make such a claim.

Of course, none of this takes into account the danger that a biological woman entering a men’s room might face. If she self-identifies as a man and proceeds to enter the men’s restroom, she is placing herself in a potentially vulnerable position.

I do find it odd that many of the people advocating for gender-neutral public restrooms are the very ones who have for years painted men as de facto sexual predators. (Michael Crichton provided a brief but very insightful discussion of this in his 1994 novel Disclosure, pp.269-70.) [Also consider the emotional trauma to young children or to women who have been victims of sexual abuse (here is a good article discussing that issue).] It seems odd that there suddenly seems to be no issue with placing women in this kind of environment. Perhaps the drive to (selectively) not offend has supplanted not only privacy but safety as well.

IV. Concluding Thoughts

Of course, this brings up the very important question of enforcement for the “Bathroom Bill”. There is no call or provision for “bathroom monitors”, so, while the bill states that people should use the restroom corresponding to the gender stated on their birth certificate, there is no checking of birth certificates at the door of any public restrooms proposed, and I certainly do not believe that is at all the intention behind the bill. Nonetheless, a man entering a women’s restroom would certainly stand out (unless he were well-disguised), and a woman entering the men’s restroom would likewise be fairly obvious. In fact, this kind of arrangement has persisted in society for quite a long time with very few problems beyond the occasional breach cited earlier or the inadvertent “going in the wrong door”. The issue only arises under the gender-neutral arrangement where a man (any man) entering the women’s restroom becomes legally protected. Who is to say whether he is indeed a “self-identifying woman” or a predator looking for a thrill? And under the politically-correct culture, any challenge to him could be seen as “intolerant” or “hateful”, so the heads up women in the restroom (or locker room) might have gotten, or the challenge that might have prevented a bad situation from occurring, will not happen. 

On the converse, an argument that I have heard from some supporters of gender-neutral public restrooms is that many have probably already shared the restroom with transgender people without realizing it. But this is not a valid argument for making it legally mandated. So far as transgender individuals who have completed the gender reassignment surgery, this is a moot point, since they already have the legal means (at least in NC and SC) to have their gender changed on their birth certificate. Therefore, as noted earlier, these individuals are not affected by the bill; in such a case, a male who has been surgically reassigned as female will use the women’s restroom and vice versa. Therefore, the rule of thumb, as it has always been, remains: people with male parts use the men’s restroom, people with female parts use the women’s restroom. Amazing how much simpler that is than the alternatives being advocated.

Ultimately, I blame this whole issue on a couple of things. As already noted, I blame it on the postmodern mindset and all of its restless drive to redefine everything and its resulting inherent contradictions. But I also blame the fact that we now have a society full of people who respond to issues out of raw emotion to the exclusion of rationality. One consequence of this is that it is the emotional appeal that gets press coverage and that garners celebrity support, like Bruce Springsteen and Ringo Starr canceling concerts in North Carolina over the issue, and some corporations even reconsidering location decisions in response to it.

One thing that needs to be kept in mind, by both sides of the debate, is that everyone should be treated with the appropriate respect (with the obvious exception of predators). Despite how the issue is being framed by many, it is not disrespectful to insist that a person who remains physiologically male should use the men’s restroom and vice versa. The disrespect lies in forcing by law women (and men) who do not wish to use the restroom or to disrobe in a locker room in the presence of strangers of the opposite sex to do so. Until very recently, this was just a matter of common courtesy and good sense. Unfortunately, it seems that neither of these carries much sway nowadays.