The Ongoing Battle Over Transgender Bathroom Access: The 'Problem' in Lieu of the Problem


Two bookending clashes between the Obama administration and conservatives over bathroom and facilities access made the week just ended a momentous one for transgender Americans. On Monday, the United States Department of Justice exchanged lawsuits with North Carolina Governor Pat McCrory and his Republican cronies over the state's discriminatory "solution in search of a problem" known to the world as HB2. Then on Friday, the DOJ issued a joint statement with the United States Department of Education clarifying for schools across the country how to comply with Title IX where trans students' access to restrooms and locker rooms is concerned.

Both federal actions provoked a lot of sabre rattling from the right. Responding to the DOJ's request not to implement HB2's restriction on bathroom access, McCrory et al. accused the department of "baseless and blatant overreach" in asserting that gender identity is a protected class under federal law. They reiterated their desire to protect "privacy rights," and paraded out yet again the zombie fiction about men entering women's restrooms to engage in all sorts of nefarious doings. McCrory repeated many of these complaints after the release of Friday's joint DOJ-DOE statement. Mississippi Governor Phil Bryant, who signed a more sweeping discriminatory bill into law shortly after HB2 was passed, also chimed in, joining Tennessee Senator and chair of the Senate Health, Education, Labor and Pensions Committee Lamar Alexander in declaring the issue a matter "better left to the states."

In the midst of all this, McCrory declared during a Monday press conference that he "wholeheartedly" supports "fighting discrimination."

Where to begin?

The North Carolina lawsuit's claim about the questionable status of gender identity as a protected class at the federal level is not wholly groundless. While both Title IX and Title VII, which covers discrimination in the workplace on the basis of "sex," have recently been interpreted by the Obama administration to extend to gender identity as well, legal protections in other areas, notably housing and "public accommodations" like restaurants and retail outlets, exist primarily or solely at the state and local level as of now, and coverage is spotty. In rejecting the administration's interpretation of existing federal law, then, McCrory and his conservative comrades-in-arms across the country do have a little legal wiggle room. The larger question, of course, is what are they wiggling about?

To repeat for the umpteenth time, there is no credible evidence whatsoever that transgender women - because where access to public facilities is concerned, we're the primary targets - pose any threat to cisgender women and girls.

How about the highfalutin and suddenly fashionable phrase "privacy rights"? According to the North Carolina lawsuit, it refers to people's "expectation" that they will "encounter only other people of the same biological sex" in public restrooms, locker rooms, etc. In other words, the right to "privacy" has nothing to do with people's safety - at least not the safety of cisgender women - but rather with their comfort. Or to put it more bluntly, we trans women should be made to sacrifice our dignity and risk getting the shit kicked out of us in the backs of men's rooms because we - or at least the idea of us - makes some people squirm.

It would seem, then, that in doubling down on HB2, the self-professed supporter of "fighting discrimination" is fighting for the right to discriminate.

Unsurprisingly, neither McCrory nor supporters of similar bills elsewhere see it that way. The North Carolina governor notes that HB2 doesn't prohibit state agencies or school boards from making "accommodations" for trans citizens by providing separate (but equal) facilities for us to use - thereby stigmatizing us by quarantining us from the general (cisgender) population, and pointing out to the bigots and bullies who to harass. Ultimately, though, the right-wing gender police don't seem to think there's any discrimination happening because they don't believe being transgender is a real thing. In the face of increasingly vociferous attestations from the medical community, affirmed unequivocally on Monday by DOJ Civil Rights Division Head Vanita Gupta, that "transgender women are women," they repeatedly refer to us as "men." And what's wrong with making men use men's rooms?

It would be easy to write off these "bathroom bills" as an instance of collective hysteria, or even as a bizarre legal fad. But as Samantha Michaels reported recently in Mother Jones, there's strong evidence that the push for their enactment is a well funded, nationally coordinated effort. Moreover, the fact that the conservative group which seems to be spearheading this push, the Alliance Defending Freedom, is simultaneously attacking Planned Parenthood and women's health care, suggests that all this fuss over bathroom use must be about more than easing the cares of the nation's womenfolk.

So what wrong(s) is HB2 and its partners in crime-fighting "really" attempting to redress? We can approach this question by first considering what makes these bills an attractive means of combating whatever it is they're meant to combat. The simple answer is that besides being one area not yet protected by federal law (at least outside of schools and most places of employment), the issue of transgender bathroom use plays well among large segments of the population. If the threat posed by the predatory trans woman is (like the pedophilic gay man of yesteryear) pure fantasy, the fears that fantasy gives expression to are very real; and exploiting those fears by demonizing us has proven to be a very effective mobilizing tool.

This begs two further questions: What are those fears? and Mobilized for what?

To address the second question first, these bills have been widely linked to the conservative pushback against last year's Supreme Court decision on gay marriage as well as recent federal efforts to extend legal rights and protections to - and to urge civility and common decency in dealings with - LGBT folks. In essence, the bathroom bills are tactical maneuvers in a turf war between broadly conflicting value systems. The right is using them, in concert with assertions of states' rights and calls for respecting "religious liberty," to marshal support for the larger goal of creating federal no-fly zones, ghettos of intolerance where existing attitudes - including those that discriminate against certain of the regions' citizens - may be left to fester (and victimize) in peace.

Why the imaginary threat of the predatory trans woman serves this purpose so well has to do with the fears it encapsulates. At the heart of the "turf war" is another dystopic fantasy popular among members of what I'll call the conservative phallocracy: the fear that their influence is eroding on all fronts. Demographic changes, so the recipe reads, and the rise of cultural pluralism (aka "political correctness") that those changes have helped spur, are menacing the group's longstanding dominance at home. Stir in some truly intractable threats in the international and planetary spheres - terrorism, instability across the Middle East and the Maghreb, and a ballooning global population in the former case; increasingly dire warnings about the effects of climate change and environmental neglect in the case of the latter - and you have a perfect gumbo of apocalyptic paranoia. So while clamoring about federalism and religious freedom is at least buying some time domestically, the downplaying or outright denial of the science around global warming and environmental degradation, and absurd, even hysterical claims about building multi-billion dollar border walls and carpet bombing desert strongholds to find out "if sand can glow in the dark," evince strong fears of impotence and futility.

Cue the trans women.

We're an easy outlet for this thwarted anger and anxiety because of our relative lack of legal protections and our marginal political, social, and economic status. But we're so useful as scapegoats, I think, because we seem to embody a primal source for these feelings. Seen as feminized men (rather than women), we're the very picture of lost virility, and thus ready receptacles for projected insecurities. More damningly still, because our decision to affirm who we are is viewed instead as the embracing of a degraded status, we become not merely fantasy objects of contempt, but criminally negligent citizens as well. At a time when the would-be wall builders and the carpet-bomber wannabes are proclaiming the need for virile men to take up their guns and fight the good fight to make America great again®, we trans women's denial of our God-given maleness, dangling between our legs at birth and duly documented on our birth certificates, is a treasonous dereliction of our "natural" duty - and as such, deserving of punishment.

In the current legal and cultural climate, policing our bodily functions is a practicable measure for redressing the Wrong that is, ultimately, us. But make no mistake, the punishment that haters on the right desire for us is far greater. Viz. the persistent misgendering of us by McCrory, former presidential hopeful and "miserable SOB" Ted Cruz, and others of their ilk. Viz. the toxic trolling that dogs online discourse about trans issues, with its anonymous threats of GBH and frequent use of the pronoun "it" in reference to us. Viz. the occasional candor of lawmakers like Tennessee State Rep Richard Floyd, who in 2012 told a Chattanooga newspaper he would "try to stomp a mudhole" in any trans woman he found sharing a bathroom or dressing room with his wife or daughters.

Let the punishment fit the crime. We exist - our transness must be denied. We speak - our voices must be silenced. We live - we must die.

It's been observed that racism cannot be legislated out of existence. The same is true of transphobia and homophobia. But continuing to right legal and systemic inequities, it seems to me, is a prerequisite for a larger societal change of heart. We are a nation founded on, and defined by, a set of legal principles and political ideals. As such, possessing the same legal protections extended to our fellow citizens will bring those of us who are members of minority groups a long way towards the larger recognition that we desire, and deserve: to be seen as fully human.