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 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.
This article originally appeared in PublicDiscourse, the online journal of the Witherspoon Institute of Princeton, NJ, it is reprinted with permission.