Written by Nathan Makela
States across the country have introduced “bathroom bills”—legislation attempting to require individuals to use bathrooms based on the sex they were assigned at birth. Though usually justified as a way to make bathrooms safer, these bills have received criticism for being blatantly transphobic.
Using a bathroom that corresponds with a person’s sex proves particularly difficult for transgender people because many times, the gender they choose to identify with does not correspond with their sex. Sex is biological, while gender is a social construct; one’s gender is not decided at birth but is a conscious decision. When an individual’s gender and sex are not the same, where are they supposed to go to the bathroom?
How exactly can one determine if a person using a gendered bathroom has the “correct” binary genitalia that these laws require? Will people be required to carry their birth certificate on them at all times? And if they don’t, will they be refused the right to use any bathroom? Will we have government officials or police officers outside bathrooms, verifying people’s genders?
House Bill 2 (HB2) was passed by the North Carolina legislature through bipartisan support and signed into law by Governor Pat McCrory. The bill was introduced to counter a municipal ordinance in Charlotte, N.C., allowing individuals to use public facilities (including bathrooms) that correspond to their personal gender identity. Governor McCrory tweeted that he signed the bill into law because the “Ordinance defied common sense, allowing men to use women’s bathroom/locker room, for instance.” In reality, the ordinance contained no language that allowed men to use women’s bathrooms or locker rooms. Either Governor McCrory had a fundamental misunderstanding of gender, or he had no wish to sympathize with the struggles or existence of non-cisgender individuals. HB2 worked toward fixing an imaginary problem while making the daily lives of trans individuals increasingly difficult.
There was little disguise as to the real reason this piece of legislation was passed. HB2 was perhaps the most controversial of the “bathroom bills” because it went further than most in its anti-gay and anti-trans language. Included with a mandate that individuals in government buildings must use the restroom that corresponded with the sex on their birth certificate was a component that eliminated anti-discrimination protections for gay, bisexual, transgender, and genderqueer people. This bill wasn’t introduced to protect people; this bill serves to unapologetically strip the LGBTQIA+ community of their rights and protections.
The bill did not articulate how the law would be enforced, nor did it outline any specific crimes or penalties. The police departments of Raleigh, Greensboro, Wilmington, and Asheville all expressed unwillingness to devote police resources to enforce the law. Charlotte Mayor Jennifer Roberts described the HB2 as “the most anti-LGBT legislation in the country.” It’s difficult to imagine a piece of legislation that could more blatantly restrict individual civil rights.
Allowing trans individuals to use the bathroom corresponding to their gender identity is putting nobody in danger. If a cisgender man uses these protectoral ordinances to justify entering a women’s bathroom, he is still breaking the law. The individual is the only person allowed to decide their gender, and they should have the freedom to use the bathroom they choose.
Furthermore, these bathroom bills don’t even begin to consider the existence of intersex individuals; individuals born with reproductive or sexual anatomy that doesn’t fit the binary definition of male or female. Which bathroom does an intersex individual use? Will special bathrooms be provided for people who do not have genitalia that fits the legislation’s definition of male or female? Based on the traditional rigidity (and lack of scientific evidence) that these bills seem to be inspired by, such action seems unlikely.
This clearly isn’t an issue about individual safety in bathrooms. This specific legislation doesn’t do anything to make people safer, it just makes an issue surrounding the autonomy of trans individuals. Just because a person doesn’t fit greater society’s definition of how a man or a woman “should” look, doesn’t mean that they are inherently dangerous. If somebody’s appearance makes you uncomfortable, that is your problem. Trans people are no more likely to commit sexual assault than anyone else. In fact, they are actually more likely to be victims of sexual assault. The National Coalition of Anti Violence Programs found that transgender people are 1.7 more likely to be victims of sexual violence than cisgender people. The National Gay and Lesbian Task Force found that 64 percent of transgender people will experience sexual assault in their lifetime. Ironically, these bathroom bills propagate trans individuals as perpetrators of sexual violence while they are actually disproportionately the victims.
If the legislatures passing these laws really cared about the sexual safety of women, they would pass legislation that aids victims of domestic and sexual violence and legislation that promotes sexual health. It seems that these bathroom bills conveniently use women as political tools to scare people into passing anti-trans legislation.
We don’t need useless legislation that only incites fear. We need education on sexual consent. We need education on diversity in gender and sexuality. We need free counseling and therapy offered to victims of domestic and sexual violence. We need to shut down these bathroom bills, get over diversity in gender expression, and move on to issues that aren’t imaginary.