There have been a spate of recent legislative proposals that aim to ban transgender Americans from using the public restrooms consistent with the gender they identify with. North Carolina, after careful consideration that lasted all of one day (the bill was introduced at 10:00 am, debated, voted on, approved, and then signed by Republican Governor Pat McCrory that same evening) has gone the furthest so far. This emergency bill not only explicitly restricts the bathrooms to be used by transgender men and women but also specifically bans any local North Carolina jurisdictions from passing ordinances that would protect gays, lesbians, and transgender persons from discrimination.
The new laws in North Carolina as well as in several other states go well beyond the bathroom issues, to provide legislated approval to explicit, open, and blatant discrimination against gays, lesbians, and transgender men and women, as long as the claim is made that this is being done in the name of religious beliefs. This is a serious concern, and it is sad but telling that leaders of the main organized religions in the US have not spoken out against such measures. Most Americans are not bigots. But this blog post will be limited to the narrow issue of bathroom use, and specifically to the question of how, precisely, do they plan on enforcing the new statute?
The new North Carolina law specifies that each person will only be allowed to use a public restroom in conformity with what they call their “biological sex”. They define “biological sex” as the sex (male or female) stated on the person’s birth certificate. To enforce this and protect the public from someone of a different “biological sex” making use of a facility, it would appear that North Carolina would need to post a policeman (or policewoman) at the entrance to each public restroom in the state (including in schools). I do not see how that is possible.
But assuming that police were so posted, would they then challenge each male entering a men’s restroom and each female entering a women’s restroom to show their birth certificate to prove they were identified as male or female, respectively, to enter said restroom? Most of us do not carry our birth certificates with us. Furthermore, at least in my case one could barely read what is on it (as the ink, from an old style photocopier of more than a half century ago, is now basically a large smudge).
In the absence of a birth certificate, would they then insist on a physical inspection of anyone seeking to enter the facility to ensure they were of the “correct” sex? And precisely what would be covered by said inspection?
But let’s assume that the policeman (or woman) successfully blocked in the name of safety a transgender man or woman from access to a restroom from which they are now forbidden by law. Or that the transgender man or woman, being a law abiding citizen, followed the new law and sought to take care of their business in the women’s restroom for the transgender man or men’s restroom for the transgender woman. The women in the women’s restroom would see a person entering who might well look, in terms of external appearance, like a man. He would dress like a man, have the hair style of a man, and might even be sporting a beard. And similarly the transgender woman entering the men’s restroom might well have the external appearance of a woman.
This, I suspect, might be disconcerting for those present. Indeed, I suspect that more than a few would immediately shout for the police. And I am not sure that a statement that they are just seeking to abide by the new law of the State of North Carolina would immediately reassure them.
In any case, the new law would provide excellent cover to a criminal who was in fact seeking to enter a restroom to assault someone there of the opposite sex.
A few seconds thought by the legislators who passed this law, or by the governor who signed it, would have led them to see this. But this assumes their intent was in fact to keep transgender men and women from using the facility consistent with the sex they identify with (as they certainly have, peacefully and quietly, ever since public restrooms came into existence). Such intent was probably not the case, and certainly not for any who thought about it, as they knew there would be no way to enforce such a measure. Rather, the aim was to harass and belittle those who are transgender, as well as gays and lesbians in the law as a whole, treating them as not being the equal in terms of their rights to what others enjoy as American citizens.