The Demise of Reason: Transgender Access to Public Bathrooms

5 April 2016

In February 2016, Charlotte city leaders approved a measure that allows transgender individuals to use the public bathroom that matches their gender identity.  On 23 March, the North Carolina General Assembly, in special session, adopted legislation that prevents cities and counties from putting in place their own anti-discrimination policies.  The General Assembly’s action voided the Charlotte measure.  The legislation was signed by Governor Pat McCrory and is House Bill 2, Public Facilities Privacy and Security Act. Now there is strong opposition to this legislation from a myriad of individuals, groups, and businesses.

My observation is that the manner in which this issue has been and is being addressed is a clear indicator that there is rapid demise of reason taking place in our country and even the world.  To see this conclusion, one only has to examine the arguments for and against allowing transgender persons to use the public bathroom of their choice.

One concern raised in support of the legislation is that of safety.  There is the possibility that women might be at risk if a man claims to be transgender when he is not and this is done to gain access to women for unacceptable conduct.  The only response I have heard from the opposition is that this has never happened.  I suppose this is in reference to cities that already have a gender identity restroom policy.  Reason says not having had it happen before is not a reliable predictor of the future.  Further, where are the facts that support the claim of no previous problems?

The concern that men might claim to be transgender when they are not leads to the need for a trustworthy procedure that determines who is transgender.  Indications are this is a difficult if not impossible task.  In an article titled “Why We Don’t Know The Size Of The Transgender Population,” Mona Chalabi refers to a definition of transgender.  She quotes GLAAD, an advocacy group that seeks to educate the media about the LGBT community. The organization includes both identity and behavior in its definition:

Transgender: An umbrella term (adj.) for people whose gender identity and/or gender expression differs from the sex they were assigned at birth. The term may include but is not limited to: transsexuals, cross-dressers and other gender-variant people.

Chalabi explains that the definition speaks both to gender identity and behavior.  That is, a person might be one gender by birth but see him or herself as the other.  This might happen with or without that person behaving as the other gender.  The bottom line of this discussion is what defines a person as transgender for purposes of using public bathrooms or claiming discrimination in other situations.  Is it gender identity or behavior?  I don’t get the impression this kind of in-depth examination of the issue has or is happening.

Then the claim of discrimination against transgender persons is made without any coherent argument.  An example is Roy Cooper’s email on 26 March.  Cooper is North Carolina’s Attorney General and Democrat candidate for governor.  In part, he wrote:

North Carolina isn’t about fear. It’s not about hate.  And we can’t allow Governor McCrory to tell the world that’s who we are. That’s why I’m telling Governor McCrory and his allies in Raleigh to repeal their shameful discrimination law right now.

Nowhere in the email referenced above does Cooper explain why he views the legislation as discriminatory.  He simply makes the statement and leaves it.  This from a trained lawyer who has served as Attorney General for years.  There is no presence of reasoning in this statement.

Against the backdrop of Cooper’s statement and the earlier discussion of the difficulty associated with clearly identifying a person as transgender, consider what constitutes discrimination.  The Free dictionary by Farlex reads:

In Constitutional Law, the grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws.

The reference goes on to state that although sexual orientation is not covered by federal legislation, some states and localities do address this matter.  Looking at the quote above, “reason” produces some questions.  First, is a particular privilege extended to anyone when public bathrooms are reserved for use only by persons of the same birth gender? No. Second, is it arbitrary to designate men and women as distinct classes when determining bathroom access? No.  Third, is there a reasonable distinction between men who are male by birth and women who gender identify as men, between women who are female by birth and men who gender identify as women?  Yes.   Given the conclusions from this analysis, there is no discrimination in the General Assembly’s action.  Has this level of reasoning been applied in the upheaval that is going on?  Apparently not…nothing even close.

The other consideration demanded by a reasoned approach is that of privacy rights.  That is, does forcing access to public bathrooms by transgender persons violate the privacy rights of persons using bathrooms based on their birth gender. The Exploring Constitutional Conflicts Homepage reports that the most frequently quoted statement by a Supreme Court justice on the subject of privacy comes in Justice Brandeis’s dissent in Olmstead v. U. S. (1928):

The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality — the right to be left alone — the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man’s home and privacies of life. This is a recognition of the significance of man’s spiritual nature, his feelings, and his intellect.

Key in what Justice Brandeis wrote is “sanctities of a man’s home and privacies of life.”  A public bathroom, even though public, should be a place where the privacy of life based on gender at birth is respected.

Presented above are some elements that, for me, would be included in a reasoned examination of the issue at hand.  Looking at the actions of some of the participants in the legislative process and comments by others not directly involved paints this picture of the demise of reason.  The primary demise of reason exhibit is that Senate Democrats walked out of the deliberations instead of voting.  These are people elected, paid, and entrusted with the responsibility of governing this state.  Instead of, with reason, discussing this situation then voting, as citizens rightfully expect, they walked out. The Associated Press reported State Minority Leader Dan Blue of Raleigh said after he left the chamber, “We choose not to participate in this farce,” A new low…paying protesters with tax dollars.

There are other responses similar to that of State Attorney General Cooper (mentioned earlier) that show a lack of reason.  For instance, the Carolina Hurricanes released a statement: “[Carolina] and PNC Arena are devoted to providing a welcoming and respectful environment for all fans. We stand against all forms of discrimination.” PNC Arena where the Hurricanes play reportedly has a maximum capacity of 20,000.    The Mona Chalabi article mentioned above indicates one of the most frequently cited estimates of the transgender population puts it at 0.3 of the U.S. population.  That means if 20,000 people attend a Hurricanes’ game, team management would deny the privacy rights of 19,940 people in order to please 60.  The Hurricanes organization sees this as “welcoming and respectful?” Their statement makes no sense.

Facebook, American Airlines, Apple, Wells Fargo, Microsoft, and Duke University are among a listing of companies and institutions that have voiced opposition to the legislation.  The veiled threat is that companies will leave North Carolina or not come here.  I agree with those who label this as “Corporate Bullying.”  The only appropriate response to bullying is to stand firm on what one, with justification, believes to be right.

I realize this legislation goes beyond bathroom access for transgender persons and bars local governments statewide from prohibiting discrimination in public places based on sexual orientation and gender identity.  Any action in this regard must be taken at the state level.  Given the extreme actions of some cities as with “Sanctuary City” designations, it makes sense to move this authority to the state level.

If as a nation and world we continue operating outside the realm of reason, the guaranteed end result will be ugly…very ugly.