Saturday, April 23, 2016

North Carolina's 'Bathroom Law' And The Tension of Comfort And Safety

The recent 'bathroom law' in North Carolina has provided the flashpoint for an important question: Should people who were born biologically male or female have a right to use the bathroom or locker room that matches their chosen gender identity?

Generally, proponents of gender-inclusive facilities have two key reasons: the discomfort for both the person and those around them if they are in a bathroom at odds with their appearance, and the danger that may accompany a scenario like that. On the other hand, opponents have two concerns: the unexpected, unwelcome nudity of opposite-sex genitalia (particularly in locker rooms), and the disruption of privacy in a 'safe' room where the expectation is that people are surrounded by peers of the same sex.

There is a lot to be said about this issue, of course.  Currently, most of the focus is on helping transgender people feel comfortable and safe. That's an appropriate concern, but it's incomplete. What about the comfort and safety of women and children? Shouldn't they be considered as well? (1) And are we stuck in an either/or dilemma, or is there a solution?

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Set aside questions of propriety for a moment, as important as they should be to the discussion (especially when it involves children). Here's the stark reality: predatory men will take advantage of gender-inclusive accommodations to act on their worst impulses. How do I know this? Because they already have. I am not saying that transgendered people want to get into women’s locker rooms to molest them, ogle them, or indulge exhibitionist fantasies. I am saying that other men will dress like women to do this – and it’s happened time and time again.

The media keeps insisting that the presence of transgender people does not compromise safety. This entirely misses the actual point of concern by limiting the scope of 'safety' to transgendered people. The way gender-inclusive guidelines are being written, there is no way to distinguish those who are transgendered from crossdressers with fetishes or devious men who will don a wig and fake breasts to gain access to women.

I offer the following list to highlight the problem: if there is no way to make a distinction between someone who is committed to being transgender (and all the therapies and possibly surgeries that follow) and someone who is not, there will be serious problems.(2) Since the concern is typically about men in women's restrooms or locker rooms, I will be focusing on those cases in particular.

It is no secret that men commit a lot of crimes against women in and around women’s bathrooms and locker rooms. There is an accessibility and vulnerability in these facilities that attracts predatory men. In July of 2016, a bar in Canada made national news when it began insisting that patrons use the bathroom that aligns with their birth gender. In their own words, "Since the passing of Bill 7, we have had numerous complaints about males going into the women’s washroom. The clientele that we serve are often under the influence of alcohol and some young men, who are not transgendered (sic) have been claiming to be, to enter the women’s washroom. This has caused some young female patrons to feel unsafe and threatened."

I see no good reason why we should promote gender-inclusive, multi-occupant restrooms that make it easier for predatory men to access these places and threaten the safety of women. This does not seem to concern at least some trans-activists at all, but it concerns me quite a bit.

Under current gender-inclusive guidelines, men who would normally be charged with voyeurism (sans camera) or indecent exposure can do so now with the protection of the law as long as they claim to identify as a woman - and they do, as the examples in my previous list reveal.  This puts women in a very uncomfortable spot. This puts children in incredibly inappropriate situations. And for those who have survived abuse by men, the idea of compromising the privacy of a bathroom or locker room is a daunting prospect indeed. How is this progress?  

Once again, I am not saying that physical danger is necessarily posed by men seriously pursuing the transgender lifestyle.(3) Laws don’t exist to put boundaries around the well-behaved; they exist to put boundaries around those who are not.(4)  The danger comes from perverted men who will work the system - or just bad men who do the same. This is why it is crucial that, if a system is going to allow transgendered people into the restrooms of their choice, the laws be precise, clear, and safe. At this point, the vague standard of 'identity' is none of these things.

This brings me back to North Carolina's law. It may not be perfect, but it is written is such a way as to at least attempt to preserve safety and privacy by giving a precise, clear legal hurdle. It requires people in publicly owned buildings that have multi-person facilities(5) to use the bathroom or locker room that aligns with the gender on their birth certificate – which can be legally changed if someone undergoes gender reassignment surgery. If someone is willing to go through the process that ends in legal recognition of a gender change, he or she is clearly serious.

Meeting that birth certificate requirement is the only current marker that I know of that offers a legal establishshmert of identity.(6) Laws like the one in North Carolina use the one legal measure we currently have to weed out the voyeurs, exhibitionists, fetishists and predators and thus protect women and children.

So, is there a compromise that would satisfy all parties?

First, if there are going to be gender-inclusive, multi-occupant restrooms and locker rooms, the standard must be clear and precise in ways they are not now. I know of no other way to weed out those of devious intent.

Second, there is wide-spread agreement that single-occupant bathrooms and changing rooms would resolve this dilemma. I agree. It will involve an important discussion about reasonable accommodations, but if implemented would take away all the tensions on both sides. (7)

Meanwhile, laws such as the one in North Carolina protect gender-exclusive spaces that honor the privacy and safety of women and children. (8) That strikes me as a good thing. It needs to matter in this discussion. To dismiss or ignore these concerns is to refuse to acknowledge the truth about the complexity of this issue.

(Note: This post was updated on 6/3/16.)

(1) I could add the comfort and safety of men, but I have not found a single voice, male or female, advocating for men. Men apparently do not have the same concerns about gender-inclusive laws as women do. Make of that what you will.

(2) I am giving the benefit of the doubt to the actual transgender community and making a distinction between being a cross dresser and being transgendered. I am also assuming many of the perpetrators are being purposefully deceitful in their presentation of themselves. Read the stories for yourself and see if you agree.

(3) While physical safety is important, the question of modesty and propriety, particularly around children, is an important one. That's a subject for another time.

(4) There are pictures making the rounds of remarkably convincing transgendered MtF, usually accompanied by the question, "Should this person have to use the men's restroom?" That's a good question, but it's misleading. There are no police outside bathroom doors checking credentials.  Assuming an appropriate level of modesty and decorum, those who have been transitioning long enough to convincingly present as women will most likely be able to use their preferred bathroom without being questioned (though locker rooms will be tougher unless a full medical transition has taken place). People claiming to be transgender MtF get reported when it's obvious there is a tension between their birth sex and how they are presenting. That is not bigotry; it's common sense. Women have legitimate reason to be concerned when they can tell that a male dressed as a woman is going into their bathroom or locker room.

(5) Of course, this law in North Carolina does not apply to private businesses. They can establish whatever bathroom policy they choose. Also, it does not apply to single occupant bathrooms in public buildings.

(6) There may be more of which I am unaware. If not, there almost certainly will be.  Cathy Brennan and Elizabeth Hungerford offer a potential definition for "persistent and documented gender identity” -  "A person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as deemed medically necessary by the American Medical Association.” Were something like this to be adopted, obviously the legal hurdles would change.

(7) My local YMCA, for example, has a locker room for men and women. They are gender-exclusive. However, they also have two private bathrooms and a family locker room  area with multiple private changing rooms that can be used by anyone.

(8) In places where there are not single-occupancy stalls, not everyone can have the comfort and safety they seek. There are 157 million women in the United States (over 50% of the population) compared to 700,000 transgendered people (0.3% of the population). In situations where accommodations are not possible, a pragmatic decision based on the number of people impacted would clearly favor women.

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