Gender dysphoria and transition, part 4: What about bathrooms?

Up till now, I've discussed the topics of gender dysphoria and gender transition from the perspective of the isolated individual: how to present yourself, whether to seek medical intervention in transitioning, and so forth. But we all live in society, and in a community governed by laws. So it is unavoidable to ask, How should other people treat or respond to the person who has chosen to transition from one gender to another?

The reason this is even a question at all is that, as a social and political community, we have chosen to make a number of discriminations routinely on the grounds of sex. The issue that always seems to serve as a flashpoint for collective outrage — on both sides of the topic — is the question of who is allowed to use which public bathrooms. For various reasons we have chosen, in nearly all cases, to say that bathroom usage should be segregated by sex; this legal provision causes difficulties for those whose sex does not align in an obvious way with their gender or their personal identification. But there are other kinds of examples. In certain contexts, professionals charged with intimate personal care are chosen so that they are of the same sex (and, implicitly, gender) as the patient. In athletic competitions, men generally do not compete against women because all the world knows that (on average, and ignoring individual exceptions!) men have innately larger and stronger muscles than women and therefore athletic competition between them would be in some ways unfair. There are surely other examples as well: some are cases of legislation (like the usage of public bathrooms) and some are cases of custom or perceived equity (like athletic competitions). But let me ask your permission to summarize all these questions, by synecdoche, under the general heading of "bathroom issues."

Why do we decide these questions on the grounds of sex? In the case of athletic competition, as noted, the fundamental issue is equity: there is a general presumption that it is not fair for men to compete against women. In most of the other cases, the fundamental issue is trust. When people are in very vulnerable circumstances, we as a society have chosen to presume that they are safer around members of their own sex — i.e., that members of their own sex can be trusted more than members of the other. This is an acknowledged pre-judgment, in advance of knowing the facts about any particular case. As a society we have decided that we don't need to know the facts in advance, because we are prepared to make this pre-judgment and encode it in law. "Pre-judgment in advance of knowing the facts" is the definition of the word prejudice, so this is a prejudice that we have chosen to encode as law. That's all.

So how should we think about this situation? If these laws are merely prejudices and nothing more, can they be justified at the bar of philosophical reason? Or should they be scrapped?

I answer that this is not a philosophical question at all. On the one hand, it is certainly true that to legislate the segregation of bathrooms by sex is simply to encode a kind of prejudice in law. On the other hand, coming at it from the other direction, it is nonsense to say that anyone has a moral right to require strangers to trust him under force of law. Remember that the context for most "bathroom issues" (leaving athletics aside for the moment) is that we as a society have chosen to say that in certain contexts people are safer with their own sex. We might have chosen differently, of course. We might have chosen to segregate bathrooms by race or by religion, while nonchalantly intermingling sexes. But we didn't. And when someone complains that he* is "forced" to use this bathroom when he identifies more with the people who use that bathroom, what he is really saying is, "Those people who use that bathroom should trust me to be around them when they are in a vulnerable state, and I want the law to force them to trust me by letting me use their bathroom!"

But what ground does he have to stand on? By what abstract moral principle can anyone ask that the law force others to trust him? When the Supreme Court in this country struck down racial segregation of schools, it was on the grounds that one set of schools were manifestly inferior to the other set. Nobody claims that the public bathrooms for men are manifestly and consistently worse than those for women, or vice versa. So it comes down to trust. And sometimes people award their trust in prejudicial ways. That's normal.

Notice that I say it's "normal," not that it is right. My real point is that all of these distinctions are arbitrary. At my undergraduate college, many of the bathrooms were integrated by sex: this doesn't mean that they only had room for one person (like today's "unisex" bathrooms), but just that nobody enforced the rules about segregation. With a very few exceptions, you could walk into whatever bathroom was closest and not think about it. Maybe you'd find a man in there, maybe a woman, maybe one of each. Or whatever. And in a community where everyone expects that, it's not a problem. 

This is why I say that there is no philosophical issue here to resolve. The only issue has to do with what people expect, and what they accept. That makes it a political issue. We're a democracy, more or less. If you want to see the laws change, organize a campaign for that change and get out the vote. As a pure prognostication, based on my reading of the electorate, I'll wager $50 that you lose. But I wouldn't mind losing the bet.** 

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* Remember what I said in a footnote to part 2 in this series, that when necessary "I still use he as the unmarked (generic) third-person singular personal pronoun.... [and that when I do] I am emphatically not trying to make a political point."

** If 100 people read this post, I'm not going to pay each of you $50. If anyone takes me up on this bet and then I subsequently lose, I'll pay off the first claimant and no others.