We
need to offer cogent, rational arguments against non-discrimination laws that
would de-segregate single-sex personal facilities.
California
Governor Jerry Brown recently garnered headlines for
signing a bill requiring all public schools to permit students to use the
restrooms, locker rooms, and other personal facilities that correspond with
their "gender identity." The purpose of the law is to ensure that
transgender Californians can use facilities corresponding to the sex they
perceive themselves to be, rather than the one they appear to be.
Conservatives
must resist two temptations in considering this development. First, we
can't dismiss the bathroom bill as a ridiculous "Left Coast"
idiosyncrasy concocted by "Governor Moonbeam" and his crazy cabal of
unreconstructed hippies. Second, we cannot and ought not assume that we can
rely on disgust, discomfort, or any other visceral reaction to carry the day in
opposing such progressive legislative innovations. Efforts to remove gender
distinctions from public facilities are national and
serious, and should be treated as such.
The
Supreme Court of Maine is considering whether,
under the state's new gender identity non-discrimination law, a fifth-grade boy
who identifies as a girl can be permitted to use a staff restroom but not the
girls' restroom. In Colorado, state courts have already ruled that
a six-year-old boy who identifies as a girl must be permitted to use girls'
facilities. And in Washington state, a state college says it is powerless to
prohibit a 45-year-old man who identifies as a woman to parade around locker
rooms used by young girls' swim teams because, per a spokeswoman, "gender
identity is one of the protected things in discrimination law in this
state."
In my
home state of Pennsylvania, official legal
guidance published by the city of
Philadelphia on its gender identity ordinance declares that discomfort with
sharing personal facilities with those of the opposite biological sex stems
from "unsubstantiated fears and discriminatory attitudes" that
employers are bound by law to attempt to "eliminate." And legislators from both
parties have signed onto a bill--HB/SB 300--in
the Pennsylvania legislature that would effectively expand this concept
statewide.
None
of these jurisdictions has a law exactly like California's. Which is to say:
California's "bathroom bill" is not a unique innovation, but merely
the codification of the necessary implications of sexual orientation/gender
identity (SOGI) non-discrimination statutes all over the country.
Proponents
of bills like Pennsylvania's HB/SB 300 and the federal Employment
Non-Discrimination Act (ENDA) forswear the implications of these measures for
use of personal facilities, focusing instead on issues of employment and
workplace discrimination. But not only have these bills led to the de-gendering
of personal facilities as a matter of fact, they must do so as a matter of principle, no matter
what pragmatic proponents argue.
Under
the logic of measures like ENDA, strictly sex-segregated personal facilities
represent invidious discrimination because they deny
"gender-non-conforming" individuals a right that most take for
granted--the use of personal facilities in accordance with one's "gender
identity." Simply placing the words "gender identity" and "gender
expression"--the inward/psychic and outward/physical manifestations of
gender, respectively--into discrimination law enshrines these concepts in our
jurisprudence, where they will be invoked to eliminate perceived discrimination
of all kinds.
To be
clear, the scandal here is not that legislation like ENDA introduces the
distinction between sex and gender into our law. We could affirm that gender is
distinct from sex, and even that its contours are complex, fluid, and partially
socially-construed, without affirming the radical view that our biology is
irrelevant to our gender.
Conservatives
embark on a fool's errand when they try to argue that our--or any--particular
social understanding of manhood and womanhood represents the essential nature
of our being as gendered creatures. Pinkness does not inhere in womanliness.
More seriously, neither courage, nor fortitude, nor any other virtues inhere
exclusively in manliness as opposed to womanliness.
We
can say all of this without saying that our socially- and
personally-constructed gender constitutes our essential identity exclusive of
our biological sex. And it is precisely this idea--that sex is irrelevant to
gender, and that gender is "who we are"--that is smuggled into our
law when the phrases "gender identity" and "gender
expression" are placed there.
We
are told, though, that biological sex cannot really matter because it doesn't
really exist, at least in the traditionally understood male-female binary. This
binary is undermined, even more than by transgender individuals, by intersex
and hermaphroditic people who are born with mixed or ambiguous genitalia and/or
chromosomal structures. Gender, then, must be an internal, chosen identity--not
a collection of macro or micro physical traits.
But
does the existence of congenital blindness mean that humans are not sighted
creatures? It is not insulting or demeaning to blind persons to say that humans
are sighted by nature; it is a fact of our species. Do intersexuality and
hermaphroditism mean that humans are not by nature male and female? No; they
mean that some people are afflicted with abnormal sexual and reproductive
capacities, in a similar way that blind people have abnormal human capacity for
sight.
These
afflictions, as with any other, call for care and compassion, not for trying to
redefine the human species. They are a reminder, also, that we are all
imperfect, physically and morally, and require the compassion of our fellow
men.
Just
as same-sex marriage redefines the most fundamental human relationship,
enshrining "gender identity" into law redefines human sexuality
itself. And, whether proponents of such legislation say so or not, this
redefinition will reach public personal facilities from elementary schools to
nursing homes.
For
many Americans, understanding this eventuality would be enough to turn them
against adding "gender identity" to our legal lexicon. But we err if
we think visceral discomfort with sharing restrooms will win the day, just as
many erred in thinking visceral discomfort with homosexuality made same-sex
marriage unlikely. The laws are changing
just slowly enough not to raise wide alarm
in our apathetic society, and when they do change it is with an air of
progressive inevitability (abetted by the media) that subtly suffocates
opposition.
We must argue, then, for why we have sex-segregated personal facilities to begin with. Are they a holdover from a bygone era, like facilities segregated by race, or legal employment discrimination against women? Or are there reasons beyond the fact that it has always been this way?
The various
activities that take place in restrooms and locker rooms implicate the distinct
physical differences between men and women. In most other public
places--offices, restaurants, sidewalks--these differences don't matter. Men
and women require no particular accommodation in virtue of their sex in these
places; it is often illegal to treat men and women substantially differently
precisely because the differences between them are irrelevant.
Sex-segregated
personal facilities exist because there are some very particular ways in which
men and women remain different, and always will be different. We need not go
into detail to observe that men and women have different experiences in
restrooms, locker rooms, and other sex-segregated places because of the differences
in their anatomy. Separating the sexes in these facilities allows for distinct
physical accommodations proper to the needs of men and women, but more
importantly it allows for camaraderie among those who share the whole life
experience of manhood or womanhood--among those who are the same. Advice, help,
humor--there are some things that only those of the same sex can fully
understand and appreciate, and which would not only be awkward but senseless to
discuss with someone of the opposite sex (other than, perhaps, a spouse).
Secondarily,
these personal facilities also implicate parts of the body that are
particularly sexual in nature, even if nudity is not present. Personal
facilities are sex-segregated in order to reduce their sexual nature. Healthy
and professional non-sexual relationships between men and women depend on
banishing the specter of sexuality from public facilities--even placing to one
side the threat of harassment and general boorishness.
That
visceral discomfort many feel when confronted with the idea of sharing personal
facilities with those of the opposite biological sex can thus be explained
rationally, and not just as the unreasonable result of social conditioning. And
we must make the argument, for without it, as with marriage, those who feel
this discomfort but do not understand it will be cowed into thinking that
they're the unwitting products of a grand scheme of disenlightenment, and will
sheepishly acquiesce in the march of progress.
The
de-gendering of personal facilities is the next logical step in the
introduction of radical theories of
gender into public policy. Governor Brown has
explicitly codified this step, and probably knows exactly what he's doing, but
across the country at the state and federal level legislators are lining up
behind "non-discrimination" legislation with no understanding of its
meaning or repercussions. We must take these efforts seriously and offer
cogent, rational arguments against them. Relying on disgust and discomfort
would be like building a sandcastle as the tide rolls in.
Brandon
McGinley is the field director of the Western region for the Pennsylvania
Family Institute.
This
article originally appeared in PublicDiscourse, the online journal of the Witherspoon Institute of Princeton,
NJ, it is reprinted with permission.
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