"Common Sense" Arguments Against Trans Rights

…a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.

A while back, I caught a spot on PBS about some piece of deplorableness that the then-incoming Trump régime had proposed. During the spot, a couple of Democratic congressmen were interviewed, and in the course of voicing his opposition to the proposed measure, one of them appealed to his fellow citizens’ “common sense.”

I applauded the congressman’s stance, of course. But that latter phrase didn’t sit well. Not that I objected to its implication that I was one of the nation’s Right Thinking People (cuz I’m arrogant enough to believe that). My concerns stemmed from the fact that I’ve heard “common sense” invoked constantly over the past couple of years in the rancorous debates about the civil rights of transgender Americans like me. And the people bandying the phrase about in that context are – where this issue is concerned at least – very much the Wrong Thinking sort.

It’s hard to imagine a less offensive looking bit of English verbiage than the phrase “common sense.” Yet one thing that’s striking about the phrase is that it so often gets used in politically or socially charged contexts. Consider its frequent appearance in the far right’s justifications for their stoopid “solution in search of a problem,” the anti-trans bathroom bills.

It’s certainly true that these bills have become common. Half the states in the union have vetted some form of them in the past few years or are doing so in the present legislative session; Wyoming became the latest state to join the party a couple of weeks ago. According to a recent piece in The Hill, most of the bills currently under consideration are based on the North Carolina law (HB2) that was instrumental in costing former Republican governor Pat McCrory his recent bid for re-election – the first time in the state’s history that a standing governor failed to win such an election. And in one of those states, Texas, the state’s own chamber of commerce estimates that passage of the bill could cost the state $8.5 billion in revenue [sic]. And yet Texas Lt. Gov. Dan Patrick insists that he and other lawmakers who have lined up behind the measure are simply “stand[ing] up for common decency, common sense and public safety.” “This legislation,” Patrick claims, “codifies what has been common practice in Texas and everywhere else forever – that men and women should use separate, designated bathrooms.”

Given how “common” all of this allegedly is, not to mention that it has been this way “forever,” you might expect to see the phrase, “Thou shalt pee in the restroom coequal with thy natal plumbing,” etched by the finger of God under any stone you trouble yourself to turn over. In light of the anticipated shortfalls, perhaps the funds for such a measure aren’t in the Texas state budget? (Note to self: Scan recent archeological publications for evidence that early homo sapiens segregated their pissing holes by crotch shape.)

It’s easy enough to point out to Patrick and his cronies that pursuing a bill that threatens to impact their state’s coffers so adversely, and that promises to address a “public safety” issue that all the reliable evidence indicates doesn’t even exist – that all this at least has the appearance of something far other than “common sense.” But when a bunch of good ol’ boys across the country continue to clamor that a patently minority view is indeed “common,” and when they and I can both invoke the notion of “common sense” to serve ideologically polarized agendas, there’s a more basic issue that needs raising: to wit, what the hell does the phrase even mean?

We can begin to address this question by turning to its history. The present banality of the phrase “common sense” belies its anything-but entry into our nation’s political parlance via Enlightenment firebrand Thomas Paine’s 1776 pamphlet of that name. In the context in which Paine used it, “common sense” took its meaning from his opposition of “reason” and “custom.” Every inch the republican radical (“republican” in the 18th-century sense of the word), Paine asserted the right of the 13 colonies to self-determination by arguing that monarchies like Britain’s tended by their very nature to tyrannize the people they lorded over. He attributed this tendency to the fact that because monarchies justified their possession and exercise of power by invoking custom rather than reason, they could easily brush off their citizens’ demands for better treatment by observing that things were done the way they were done because that’s how they’d always (“forever”) been done. In privileging reason over custom in statecraft, Paine was attempting to close this loophole, and he characterized this flipping of the script as “common sense.”

Paine’s views have of course long since become part of our nation’s political dogma. At the time, though, they were hardly held in common by all Americans. Indeed, while successful in galvanizing public support for the revolution, his pamphlet was attacked by more conservative separatists like future president John Adams as well as by colonists who remained loyal to the British crown. This underscores a core point about appeals to “common sense” that remains true today: that they’re more or less bald assertions of how things should be masquerading as mere descriptions of the way things are. Labeling something “common sense,” in other words, asserts that it should be the way things are because the values, beliefs, or sentiments that inform it are (or should be) self-evident – that tyranny is bad, for example, or that everyone possesses the unalienable right to life, liberty, and the pursuit of happiness. And it’s those underlying values, beliefs, or sentiments that, being self-evident, are supposedly shared in common, and not the something being asserted (that states have the right to self-determination or whatnot).

I’m not suggesting that arguments based in values or emotions are de facto illegitimate or suspect. Far from it. But if we recognize “common sense” arguments for what they are, we’ll be in a better position to evaluate their merits because we’ll know where to look for what’s underpinning them.

Let’s return to the far right’s use of these arguments to justify the passage of anti-trans bathroom bills. For the purposes of illustration, I’ll examine a recent article entitled “The ‘Transgender’ Lobby’s Civil Rights Con – Common Sense Bathroom Laws Are Nothing Like Racist Jim Crow Laws.” The piece was authored by anti-LGBTQ crusader and self-styled founder of Purity Quest Ministries, Bruce Smith, Jr., and appears in an evangelical echo chamber called Americans for Truth About Homosexuality. Though notable for its relative thoroughness and clarity, Smith’s little polemic is otherwise a perfectly representative example of the far right’s main rhetorical strategy where this issue is concerned: to lay out seemingly cogent arguments derived not from substantiated evidence that we pose a threat, but rather from the “common sense” presumption that gosh, we must be “sexual deviants” because being trans just can’t be a real thing.

The self-evident nature of this premise is signaled from the get-go through the use of scare quotes around the word transgender in the piece’s title. What right-thinking person, the quotes assert, would use that word without quarantining it from the stuff he actually believes? In the article that follows, Smith attempts to put some meat on this bare-bones belief. As the rest of the piece’s title suggests, his main line of attack is to contrast racial and trans discrimination. He does so by insisting that the former is real because it’s based on a biological trait that people can see (skin color), whereas the latter, because of the lack of any obvious sensory markers – independent of our own necessarily unreliable words and deeds – isn’t real. Thus for example the “liberal claim” that the “bathroom controversy,” as he calls it, is based on a “core problem” of “inequality” is “plainly false.” “Gender inequality,” he goes on, “from a biological standpoint, is not a problem; it is reality. Because men are not biologically equal to women, common sense dictates that biological men should use men’s bathrooms and biological women should use women’s bathrooms” (emphasis in original).

As Smith himself is a person of color, his assertions about Jim Crow carry some weight. But that doesn’t mean he knows jack about trans folks. Indeed, one of the most striking things about his piece is how manfully he ignores the medical and psychological research on the trans condition and gender more broadly despite insisting repeatedly that he’s basing his argument on “biological” factors. This begs the question: just what does he mean when he says he’s adopting “a biological standpoint” on the issue?

The final sentence quoted above gives a pretty good indication. In that sentence, Smith conflates “men” with “biological men,” and “women” with “biological women,” which implicitly asserts the following: (1) that there are no other ways of defining the two genders because (2) there’s no distinction between gender identity and biological sex, and therefore (3) the trans condition doesn’t exist. But what’s the evidence for these assertions? This conflation doesn’t just dismiss wholesale the swelling body of research documenting our existence, not to mention the centuries of testimony that we ourselves have offered about who we are. By denying the fundamental distinction between gender and sex, Smith also completely ignores the well-documented range of genetic variation that occurs in the development of both, which gives the lie to any belief in the tidy division of the two “biological” sexes à la the Genesis creation story.

Since this manly man of God is holding out against the evidence of godless biological science, he must mean by “biological” something more basic like the stuff in the physical universe that has a pulse. No need to make nice distinctions based on genetics or anything else that we can’t see (or that threatens the truth of the Genesis account). Like race, the other “biological” stuff that’s real and not just made up by godless scientists and liberals with ideological axes to grind is plainly visible to the eye. And gender is no different. The “biological standpoint” from which you confirm someone’s gender identity means the spot from which you peep between their legs at their genitals.

In sum, Smith’s use of vaguely “scientific” terminology like “biological,” “race,” and “deviant” is a smokescreen to obscure the naked bigotry that makes up the meat of his argument. And his appeal to the “dictates” of “common sense” similarly amounts to nothing more than a rhetorical sleight of hand to divert attention away from his failure – and ultimately his inability – to provide any firm support for that argument.

As satisfying as these conclusions are (to me at least), I’d like by way of closing to complicate them. For I doubt that people like Smith think their arguments against our rights – or our existence – need much if any justification. Since the anti-scientific positions underlying them are a matter of right religious belief, our deviance is self-evident, and the need to legally curtail us follows as a matter of course. This stark epistemological divide raises a troubling question: what possibility is there for reaching any sort of consensus about trans rights? We and our allies won’t even come to the table if we’re required to accept such demeaning views of us as the precondition for a discussion, while evangelicals like Smith and other “social conservatives” presumably won’t talk if they have to allow that we’re anything other than what they claim we are. Trans folks, in other words, seem to be in the crosshairs of what’s being called the “post-truth” era.

In the case of the bathroom bill “debate,” however, I think there’s a fairly simple way around this apparent impasse. Insulting as it is, we can set aside the question of whether or not people like me truly are what we say we are and consider the bills in terms of their only real justification: whether they will promote “public safety” and prevent harm from being done. Here the evidence is quite clear: as noted, there’s no documentation to suggest that trans folks who use gender appropriate restrooms pose any threat to the cis majority. The only thing those who identify as cis risk through exposure to us is their comfort, and that only if they believe that we’re deviants – and if they read us as trans. We on the other hand remain at risk for a fuckton of bad shit without legal protections, as has been documented extensively. We are the victims in the bathroom scenario, not the victimizers – the prey, not the predators.

If these bills really were about public safety, then, they’ve got everything ass-backwards. The only way to even halfway square that stated concern with their targeting of us is to deny that we’re part of the “public.” And that’s the whole point of this far-right bathroom crusade. These bills in actuality have nothing to do with protecting others from us: their aim is simply to quarantine and punish us for gumming up the far-right worldview with our existence.

A most Xian tyranny indeed.

Revised January 29, 2017: The phrase “punish us” in the penultimate paragraph was hot linked to a recent article.

This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.