This week, a legal battle heated up between the United States Justice Department and the State of North Carolina, over a recent North Carolina law that, among other things, sets out rules for bathroom use. This bathroom nonsense has been floating around for a while now, and I can't remember a time when I saw so much misinformation being thrown around about legislation. The North Carolina law requires people to use only those public restrooms that correspond to the gender to which they were born. In other words, if you were born with a penis, you have you use the Men's Room for all time -- even if you now have a vagina.
In talking to friends and colleagues, I've found that even people who seem to know that these laws are hateful and wrong are having a hard time articulating precisely why. By contrast, the ardent supporters of this legislation have a go-to list of reasons why our world will fall apart without it. As a public service to those who wish to prepare for the inevitable debate with the passionate-but-ill-informed, I offer the following responses:
1. "I don't want my daughter in a public bathroom with an adult man." Then you definitely don't want these laws to stay on the books. These laws require everyone to use only the bathroom that corresponds with his or her birth gender. That means that a transgender man who has transitioned (meaning that this person might have a beard or a penis and in all ways identifies himself as a man) would be required to use the ladies' bathroom.
2. "Without this new law, perverts are going to use the law to allow them to go into ladies' rooms and terrorize everyone." For starters, criminals don't "use" laws by researching their statutory defenses before they menace the public. But more importantly, we already have criminal statutes that outlaw predatory or violent behavior in bathrooms. If a pervert were to spy on a person using the toilet, or to inappropriately expose himself to someone, or molest someone in the bathroom, he is already committing a crime. That pervert could never successfully defend himself by saying "I was legally allowed to be in this bathroom." Laws that prohibit harassment, indecent exposure, invasion of privacy, and violence already protect us, both inside and outside bathrooms. Our world has functioned until now without the need of laws criminalizing urination in the "wrong" bathroom, and we've all survived by using the rest of the penal code to prosecute the bad guys. This is one of those "it wasn't broke and we didn't need to fix it" situations.
3. "This law protects children." No, it doesn't. Children are at far greater risk of being abused in their own homes than they are in public restrooms. And while we're at it, transgender people are far more likely to be victims than they are to be predators. If this law were aimed at protecting children, it would legislate behavior not presence. But even if bathrooms were the place where molesters lurk, anyone in the child-protective business knows that bad guys victimize girls and boys in equal measure. Therefore, a law that only considers little girls in the women's room isn't logically connected to protecting children as a group.
4. "Transgender people shouldn't get special treatment." These bathroom laws do nothing to create "special" treatment for anyone. Opponents of the laws aren't arguing that a better law would create special "Transgender Bathrooms;" they simply want the laws governing bathrooms to go back to the way they were pre-2016. This issue is not about some kind of transgender affirmative action -- this is about protecting a group of people from laws that purposely discriminate against them by forcing them to use restrooms that are unsafe and inappropriate. The law can protect people from discrimination without giving those people "special" treatment; that is the concept of equality.
5. "People with penises use the men's room and people with vaginas use the women's room. Shouldn't it be that easy?" Even if it were that easy all the time, enforcing a law like that would require the enforcer (police, etc.) to inspect people's genitalia. Otherwise, how could we tell if a person were following or breaking the law? I think we can all agree that authorizing courthouse security guards or police officers to inspect what's going on in our underwear is a really, really bad idea. A much better rule would be, "if it walks like a chick and it talks like chick, it should be allowed to pee with the chicks."
6. "There aren't enough transgender people out there for this to even be an issue." There are plenty of transgender people out there. Anyone who doesn't know that is a testament to how well many transgender people blend in with other members of the gender identity to which they have transitioned. But even if there were only a tiny number of transgender people out there, these laws would still stink. Taking these laws off the books wouldn't require construction, wouldn't cost taxpayer dollars, and wouldn't burden anyone. It would simply stop discrimination.
7. "Transgender people can just use their own individual bathrooms." Yeah, no. A while back, we (and by "we," I mean "the Supreme Court") decided that "separate but equal is inherently unequal." Forcing a group of people to keep away from the rest of us is pronounced "seg-reg-a-tion" and we don't do that anymore. If we're going to create a third bathroom, how about we just make the bigots use that one? That would seem easier.
The Justice Department and I won't be relying on any of the aforementioned counterarguments to these laws, because we have the Constitution. Even if the stock arguments listed in #1-7 were true, these laws would still constitute unconstitutional bigotry. It wasn't about water fountains in the 1960s and it's not about bathrooms now. When laws are drafted and passed for the purpose of hurting a group of people, those laws violate our liberty on the most fundamental level. North Carolina and the rest of the South needs to get its act together. Gay marriage is legal. Transgender people are humans entitled to equal rights under the law. It's time to get over it and join 2016 with the rest of us.