NC HB2 – and How NC Protects Children

Yes, you actually read this right.

North Carolina has been in the news lately, due to an absurd law aimed at stigmatizing trans people (see a previous post, http://crimeagainstnature.org/2016/03/24/north-carolina-cant-even-do-the-wrong-thing-right/).  Basically, the law, which includes no penalty for non-compliance, requires government to designate multi-stall bathrooms for use by only one gender as indicated on birth certificates. It also prevents cities and counties from passing non-discrimination ordinances for pretty much anything, including to require bathroom access be properly allowed. Obviously, this is problematic.

The stated reason for these laws is to protect young boys and girls from sexual predators, who, apparently, will enter a bathroom of a gender different than their birth certificate and expose themselves and/or watch the children for sexual gratification.

Note that the law doesn’t make it illegal to enter a bathroom based on your birth certificate (you may be committing trespass however, if the property owner does not approve, if your birth certificate isn’t what the state thinks it should be).

That said, it is a felony (and has been for some time) for an adult (anyone 16 or older) take indecent liberties (which includes exposing the adult’s genitals) with a child (NC § 14-202.1) – if someone is 5 years older (or more) than the child, for the purpose of arousing or gratifying sexual desire. There’s a similar law in NC § 14-202.2 that applies to children committing this against another child. One difference between the adult and child versions is that someone 16+ years old needs to be 5 years older than the victim under 16, while a child committing the similar child crime needs to only be three years older. Thus, it’s indecent liberties with a child if a 15 year old exposes themself to a 12 year old, but not if a 16 year old exposes themself to a 12 year old. Maybe that would be worth fixing if the state wasn’t so fixated on keeping transwomen out of bathrooms.  Importantly it doesn’t matter what sex the victim or the perpetrator are – same or different sex, the law still applies. And there is no exception for bathrooms or locker rooms.

So I decided to investigate a few things.  Particularly, how does North Carolina protect children and others from sexual and other acts, other than just indecent liberties.

North Carolina wisely disallows children under 14 from marrying, even if pregnant.  But if there is a pregnancy, there can be a marriage of a child to another person.  The fetus doesn’t need to actually be born, since abortion is legal in NC.

NC § 14-12.7 prohibits masks on public roads and sidewalks – intended to make some KKK activities illegal, no doubt. Fortunately NC § 14-12.11 protects the traditional Halloween costume, masquerade balls, labor union meetings (sometimes), and anyone that has the permission of the town’s board.  There is no exception for my tinted motorcycle helmet however.

NC does regulate sexual activity, perhaps to protect children along with, apparently, others, like gay men.  For instance, § 14-177 makes “crime against nature” illegal – basically any penetration (however slight) other than a penis into a vagina between two people (or any sex with an animal), consensual or not.  See here for some more details (note the link includes discussion of child sex abuse). Of course much of the activity technically illegal under state law was determined to be legal under Lawrence v. Texas, but for some inexplicable reason, NC’s legislature doesn’t want to repeal this law – they want all you straight people having oral sex to know you shouldn’t do that.

NC § 14-184 makes fornication & adultery illegal.  Basically, it’s fornication if a straight couple has sex where both are unmarried, and it’s adultery if one or both are married to someone else – but NC goes a bit further and makes all cohabitation or “bedding” together illegal if it is done “lewdly and lasciviously” – you get to figure out what that means. However, if the two people are the same sex, it’s okay under this law (I don’t think they got around to making this law gender neutral even after their homosexual sex law became invalidated).  Too bad North Carolina doesn’t have an anti-discrimination law that includes sexual orientation! But because they don’t, straight people don’t have the protections gays have, at least as far as fornicating together in bed. Oh, it’s also illegal if the fornicating/adulterating (?) couple checks into a hotel and claims to be married (NC § 14-186).

NC’s sexual obscenity statute (NC § 14-190.1) defines sexual conduct as to include the portrayal of someone naked or in undergarments being tortured. I don’t know if the Catholic Church and others who depict Christ crucified realize the sexual undertones of their portrayals – but fortunately there’s an out in the reasonableness standard, at least until there are enough people offended by that depiction to declare it obscene.

Apparently unknown to state legislators, NC § 14-190.9 makes it illegal for an adult – same sex or opposite sex – to, in a public place (which is places the public can go – most business and government bathrooms, for instance) expose their genitals to a child under 16 for “arousing or gratifying sexual desire.”  Even better than HB2 because it actually addresses the concern raised by legislators and others in passing HB2, this protects kids from all adults, and is actually targeted at the problem that legislators didn’t realize they already solved years ago.

In addition, NC § 14-196 protects us all – adult and children – from phone sex, which is illegal in NC (also computer sex, if done using a computer modem – I personally think that would hurt, but obviously I don’t have the mind of a legislator in North Carolina).

So, certainly, North Carolina seems to have found all sorts of strange ways to protect us from gay sex, wearing the wrong motorcycle helmet, marrying at 14 (unless pregnant or making pregnant!), telling hotel clerks you’re married when you aren’t, and phone sex.

Perhaps they would be better off trying to make bathrooms actually safe. You know, safe not just from imagined predators, but safe for trans people – including trans kids. You start that process by not giving state approval to bigotry.

Discomfort vs. Identity

Recently, California passed a new law that clarified existing law – it didn’t actually do anything new, but it made the interpretation of the existing law a lot clearer.

180px-Oregon_special_election_ballot

A mail-in ballot (From Wikimedia, Public Domain license)

This law, AB1266, is short and easy to understand.  This is an advantage over the other non-discrimination law that doesn’t directly answer questions such as, “Do schools have to recognize the gender of a trans student?”  Instead, the other law simply says they can’t discriminate against a trans person, but doesn’t explicitly say lack of gender recognition is a form of discrimination.

AB1266 added to existing language in California that requires schools to treat the sexes equally (the existing language required schools to do things such as providing career counseling that included occupations outside of gender stereotypes.  The new, trans-specific language is very short:

A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.

And that’s where the issue is.  It makes it clear that a trans girl could play girl’s basketball and use the girl’s locker room.  And you don’t mess with two things in America: you don’t mess with sports or nudity.  It’s our God-given right to have as many lethal firearms as we want, to have easy access to alcohol, to allow people to die of treatable illness if they can’t afford good medical care, and to invoke the name of God in school even if it offends some students (note however that this only applies to the Christian God – don’t try to invoke the a deity from another religion!).  But, if a teenage girl finds out a penis exists…well, then it’s all over.

Of course I’ve written before about the need for privacy in bathrooms and locker rooms – and how it’s only a minority of people that the right wing cares about protecting in bathrooms.  If adults want safe places for our children to pee and shower, they can start by getting rid of non-private facilities.  Seriously.  That would be legislation worth having.  Too many people are abused in the current facilities.  Including trans people, but not only trans people.  If you want your kid safe from having to see a penis, give them both a private place to do their thing!

Unfortunately, the same people that funded much of Prop 8 are behind a new move to repeal AB1266.  These include the National Organization for MarriagePacific Justice Institute and Calvary Chapel.

The various groups behind this  also used the same tactics.  Like conjuring out of thin air not one lie, but two – they found two instances of girls being harassed by trans students in the bathroom.  Yes, both were lies.

The first one was a girl from Colorado.  Here’s a report, including audio conversation with the school, that shows one of the other organizations behind this initiative, the Pacific Justice Institute (a right-wing Christian political group) made up the accusations about harassment.  The falsely accused girl?  She’s on suicide watch.  If this doesn’t demonstrate the need to protect the rights of trans students, I don’t know what does.

The second lie was about a girl from California. This was by a Calvary Chapel of Temecula ministry – Salt and Light Ministry.  Again, the story was about a trans girl that was harassing students in the bathroom.  Just one problem: it wasn’t true either.

Now, I don’t think there is actually a commandment against trans people (maybe someone can find that for me).  But the 10 I learned did talk about bearing false witness. It also stirs up hate and violent sentiment towards trans students.

Back to present time, however. There are several groups that want to repeal AB1266, and they’ve been collecting signatures to put it on the ballot.  It looks like they’ve met that goal – they claim over 600,000 signatures, when just over 500,000 are needed.  Now, it’s certainly possible that 20% or more of the signatures won’t be valid, but I’m not holding my breath.  I hope they are.  As I see it, that’s about our only chance, because the possibility of educating people about trans people is just not realistic for 2014. And an initiative like this, funded well by the right wing, would do damage not only erasing the law, but worse in stirring up hatred and violence. And there’s a solution that meets everyone’s needs: private facilities. Yes, it would cost money. Aren’t our kids worth that?

If the signatures are valid – and, again, I pray to God there aren’t enough – then this will go to the voters. And we’ll see who the true allies are among the LGB community. Sadly, I think some will stand on the sidelines while their T brothers and sisters are thrown to the wolves. And discomfort around trans people (the “ick” factor) will win over logic and identity.

 

The Tradition of Fixed Gender

A recent Fox News article about a proposed California law to protect trans students from discrimination is what one would expect from Fox – transphobic and ignorant of science, while finding obscure hate groups to provide “counterpoint” to a fictitious argument.

As someone who finds history – particularly history of gender, sex, and orientation – to be fascinating and much more interesting than much of what I was taught in school (or should I say “what they tried to teach me in school?”), I found one statement pretty humorous:

“For a millennium, sex has meant male or female,” she said. “What they are saying is now you can change that.”

The person quoted is Andrea Lafferty, the non-traditional head (many “traditional” churches still ban women from leadership, after all) of the Traditional Values Coalition of California, an obscure anti-gay group that has been designated as a hate group by the Southern Poverty Law Center not because of their anti-gay stance, but rather because of the known and verifiable lies they use to promote their cause  of hate.  Any responsible journalist would recognize that this may not be the best source for a quote, unless you are talking about how absurd some groups in America are when it comes to hating gays (and, to these groups, gays and trans people are exactly the same).  But I digress.  She claims that for a millennium (that would be roughly 914 A.D. until now) that sex has meant male and female.

Apparently intersexed people don’t exist.  These are people who, at birth, have ambiguous genitals or other sex characteristics.  For instance, someone with some cells that have XX chromosomes (female) and someone who has XY chromosomes (male) would be intersexed (and, yes, these people do exist).  Sex determination is hard – so hard that most reputable, scientifically based groups (such as most sports organizations) have acknowledged that someones we just can’t know if someone is more male or more female – they are ambiguous, and no test can make it clear (in those cases most sports organizations fall back to the person’s legal recognition).

That of course is not new.  Focus on the Family seems to imply that intersexed people shouldn’t marry, by saying:

From [some previously quoted Bible passages] we see that Christians are called to understand that God readily seeks to strengthen and encourage those who find themselves unable to marry and participate in genderedness and sexual expression as ordained in the created order.

The context of this is about why you can dismiss intersexed people as a challenge to Biblical ideas of male and female (note that not all Bible scholars agree that the Bible says everyone is fully male or fully female and cannot change).  They go on to say that the person should live their assigned gender identity, never mind the possibility of error at birth.  So, Focus on the Family’s solution is to just ignore intersexed people when it comes to discussion about gender, and that they live single lives rather than complicate the situation for Focus’s followers.  Oh, elsewhere they tell us that intersexed people – unlike the rest of us – are a result of the fall of man, and thus are basically the fruit of sin.

So ignoring or insulting intersexed people is hardly new for some groups that claim to be acting in the name of Christ.  So it is no big surprise when the Traditional Values Coalition’s (TLC) executive director ignores those.  At least those who have existed in the last 1,000 years or so.

But back to the rest of her point – that, ignoring intersexed people, sex has meant male and female for a 1,000 years.  Of course we should differentiate sex and gender, with sex being biological and gender being identity – and I’ll ignore the common sense that says someone who identifies as a woman and is known to be a woman should use the women’s room, or the common sense that a non-discrimination law for students affects far more than bathrooms.  Or that this is needed because of the tremendously high suicide rate of trans youth.  I’m going to ignore that and just focus on how sex has meant male and female for 1,000 years.

Looking at that, most trans people would say, for the most part, it still does.  Most trans people don’t seek a third category (some do, and this of course should be respected).  The very idea of gender identity disorder (the current DSM-IV diagnosis for a transsexual) is someone that is unhappy with the biology of their body – and there are of course medically recognized treatments, consisting of things like hormones and surgery, for this diagnosis.  And most of these people would consider themselves to be male or female after transition.  No surprise there (except possibly to the TVC).

I suspect the literal reading (a mode of Bible study these people are fond of!) is not what the Executive Director intended, however.  I suspect she’s arguing that sex is fixed, and can’t be changed.  And, further, that people should live in the gender role that matches society’s expectation for their sex.

So, let’s look at some history.

Let’s take Queen Christina of Sweden in the 1600s.  That’s within 1,000 years.  After she abdicated the throne, she traveled as Count Dohna, a man.  There’s some evidence she may have been intersexed, and also may have been bisexual.  During her life, many observed she (unfortuantely I don’t know which pronoun she would prefer) did many things as a man would.  Want a real mindblower?  Her body is in the Vatican crypts.

Queen Christina of Sweden on horseback, as painted by Sebastien Bourdon in 1653

Queen Christina of Sweden on horseback, as painted by Sebastien Bourdon in 1653

Or the many Native Americans who lived as what we might see as transgender or transsexual lives.  That is, a person born with male sex organs who lived, worked, married, and dressed as a woman, often married to a man.  Or vise-versa.  Or those that lived as neither man or woman.  That mostly stopped as the USA was colonized and Christianity (and European interpretations of Christianity) were brought into the culture.  This was certainly within 1,000 years.

Or we can look at Islam and Mohammed, who lived a few hundred years before the last 1,000 years.  The Quran references “Mukhannathun” who would generally be considered transwomen today.  Within the last 1,000 years, other writings have confirmed this view.  There is controversy about whether trans people are committing sin in Islam, but regardless of that controversy, clearly gender was not always black and white.

Or we can look at USA court cases.  Such as M.T. v. J.T. in NJ (1976), which affirmed that a post-operative trans person was in fact a different sex than their birth.  It’s for this reason that most US states allow reissuance of a birth certificate after a sex reassignment procedure.  Clearly sex is not fixed in the eyes of the law.  We can look at more recent legal decisions such as the federal In re Jose Mauricio LOVO-Lara (2005), where a post-operative trans person was recognized as a female for immigration purposes.

There are literally thousands of examples I could cite, but the above is sufficient: sex was never recognized as completely black and white, one way or the other, and unchangeable.

Of course then we get to the heart of the issue and the real transphobia in the Fox article.  The heart is the idea that trans people aren’t really the gender they claim to be, that they really are whatever was put on their birth certificate at birth.  That’s what’s really at issue, beyond all the talk of bathrooms and religious discrimination and love for the product of Adam’s sin.  It’s about whether or not a person’s gender can be legally recognized.  Some, who have nothing in the fight except hate, say no.  They say that they outnumber trans people, so trans people should lose.  Fortunately, our country’s founders were smart enough to not quite let majority rule at their whim – and this hateful group very likely lacks even that majority.  Even the rights of one are worth protecting.  Scared your kid might have to use the bathroom with a trans person?  I hate to tell you this, but they almost certainly already have.  And so have you.  Beyond that reality, trans people are not sexually assaulting kids in bathrooms.  No, rather than that, the trans kids are being assaulted in the bathroom.  So, if you really care about kids, as you claim, why don’t you start by figuring out why someone would think it’s okay to beat someone up because you think they dress wrong, talk wrong, act wrong, or pee wrong.  But, no, the solution from the right wing is to allow schools to exclude and neglect trans people, to appease people who think they are living a life of sin, who want a trans person to be punished for the mistaken idea that somehow you can punish the trans out of someone.

One thing is for sure, though: trans people aren’t a new part of society.  This is hardly a new idea to any serious student of history (you know, the kind that doesn’t just read stuff that reinforces their views and ignores all other sources).  Maybe it’s new to some bigoted right-wing hate group administrators, but it’s not new to the world.  I didn’t even mention the Asian or African cultures that lived for thousands of years (and often still do) with third gender members of their communities.  Or the women who dressed and acted as men to fight for the USA (or other nations).  Or the many other people who didn’t meet everyone’s gender expectations.

We’re Having the Wrong Conversation

Lots of people have insecurities about public toilets and locker rooms.  If you combine that with a lack of understanding of trans people, they may be afraid of using a bathroom with someone who is trans.

The fear comes from lots of places.  A lot of it is simple ignorance.  Most of us were taught:

  • Men have penises, women have vaginas (Thanks, Kindergarten Cop!)
  • XX Chromosomes = Female, XY Chromosomes = Male
  • Male = man, Female = woman – that is, sex and gender are 1 to 1 associations (see Terminology to learn the difference)
  • Determining the sex and gender of a person is simple.  Look at their parts or examine their chromosomes.

None of these are true, unfortunately.  But a lot of people truly don’t know that.  It’s ignorance.  There is no shame in not knowing something.  Nor is it evil or bad to not know something.

The solution to ignorance is education.  It’s pretty easy to spot whether someone was merely ignorant (I.E. not morally bad or evil) or if they may also hold prejudice and ego – which can be negative moral positions.  A lot of people, when educated, respond out of anger that they were corrected – this is often ego.  People don’t like being wrong, unfortunately.  Maybe they’ll get over that, and it’s one reason education should, when possible, be done gently without moral judgement (at least until the person shows that it’s not simple lack of exposure to the topic at fault).  Of course that’s a lot easier if you’re not the trans person who is being invalidated by these defensive reactions – hence the need for us allies.  Others are prejudiced or “willfully ignorant.”  They don’t want to listen to alternative evidence, this is “common sense” to them.  These people can’t be educated until they get past their refusal to participate in education.

This brings us back to bathrooms (this is a North-Americanism – elsewhere the word would be toilet).  There are a few more assumptions people have regarding bathroom users:

  • Women are at risk of attack in spaces shared with men
  • Women are particularly vulnerable in a bathroom
  • Transwomen are really men because they have a penis and/or XY chromosomes

We talked about the third bullet.  I’m not going to explain why that is false, but it is.  You can Google it yourself easily enough.

The first bullet point is based on a truth, but isn’t itself true.  Most sex crime victims are women and most perpetrators are men.  But it’s not shared spaces – it’s private spaces.  And, generally, it’s not random men.  It’s known men, not strangers, doing it (now I’m not saying that women don’t get assaulted by strangers – that clearly happens too, but it’s not as common).

There’s no actual crime evidence that women are more at risk in a bathroom, but I can understand that many people feel vulnerable when in the bathroom – you’re not likely to be as able to easily fight people off while sitting on a toilet with your pants down!  Plus, bathrooms are typically relatively quiet, secluded places – so people might not know you’re being attacked in there (one could argue that making one bathroom instead of two – and thus increasing traffic in it – would make many bathrooms safer because most criminals wouldn’t want to commit crime with witnesses or potential defenders around).  It’s important to recognize however that this is a feeling, however, not necessarily supported by evidence (for rape and sex crimes, statistics show that a private residence is far more dangerous than a bathroom).

There simply isn’t any evidence for thinking transwomen in a women’s room is dangerous.  But these views persist.  What else might be keeping women from seeing transwomen as safe?  There’s a few things:

  • They might believe being trans is a choice
  • They might believe transwomen to be immoral
  • They might associate trans with mental illness
  • They might associate mental illness with dangerous people
  • They might associate poverty with dangerous people
  • Unfamiliarity is felt as danger in humans

The first two bullets are related – some people, despite medical evidence clearly to the contrary, insist that trans people are choosing to be trans.  Further, this group is typically the same group that believes making this “choice” is immoral.  If you believe someone is going against God’s laws in one area, you might fear them in another.  I think this is why some people associate gay men with pedophiles – it’s not based on facts, but based on moral beliefs (for what it’s worth, most pedophiles are married to an opposite-sex spouse and even pedophiles that molest boys are, similar to non-pedophiles, mostly heterosexual with similar percentages identifying as gay in both the pedophile and non-pedophile groups [source]).

The third and forth bullets are also related.  While there is a diagnosis for gender identity disorder, and clearly the mind plays an important part in determining who we are, there is an assumption behind the scenes: “trans people are mentally ill in a way others are not.”  Nobody would dream of telling a depressed woman (depression is clearly a significant and life-altering mental illness) that she shouldn’t use the bathroom.  In fact, according to the NIMH, 46% of the US adult population will experience a mental illness during our lifetime.  Nearly 1 of 2.  Someone in your family, in other words.  Someone you love.  Someone you hang out with.  In a given year, 26% of the US adult population experience a mental illness.  Of that, 6% of the US adult population will experience a severe mental illness, which it turns out to be pretty hard to define.  You’re using the bathroom with some of these people, trust me

Further, mentally ill people are not more likely to attack you.  They are more likely to be victims.  They are even more vulnerable than the typical women or child in general.  I’ve written about this regarding autism in particular, but it applies to gender identity disorder and other illnesses as well.  There’s a lot of bias against mental illness.  So, linking this back up to choice, you can see yet one more reason why nobody is “choosing” to be trans – in our society, that’s linked to mental illness and mental illness is linked to moral failure and danger.

Now we get to the meat of the issue – the issue of poverty.  It’s combined with other things, like crime, drug use, and prostitution.  But the root of the issue is poverty.  People who aren’t poor are scared of the poor.  They don’t associate with the poor.  They don’t like being in the same neighborhood.  Watch what happens when a public housing agency tries to build affordable housing in a typical suburban neighborhood – beyond the rhetoric about property values (which is essentially “Well, everyone else is biased”) is fear of the poor.  Few look at the links between crime and poverty – why do people turn to prostitution or drug abuse?  But it should be noted that the poor – even poor, prostitute, drug-users – aren’t walking into random bathrooms to rape women.  In general, the rapist (over 90% of the time) is someone the woman knows, probably from her own social class.  Rapists don’t know class boundaries.  And plenty of “respectable,” non-mentally ill, non-poor, non-drug-using men are raping women.  And that problem isn’t going to get solved while we focus on the risk that isn’t there (transwomen who are raping non-trans women in the bathroom).

Of course, if you are concerned about poverty, you would probably support a bill that would reduce poverty.  Like ENDA.  Which will never pass so long as the Republican party has breath left.  Of course fear of the poor doesn’t actually translate into concrete action to deal with the problem of poverty faced by too many trans people.

That’s where we get to the last bullet: unfamiliarity.  You probably do know someone who doesn’t hold a traditional gender view for their sex.  They might not be expressing it, out of fear.  It turns out that when others see unfamiliar things, and it challenges their way of viewing the world (or, worse, their view of themself), some people get violent.  Not the unfamiliar person, but others.  Yet, for some reason, the unfamiliar person is seen as a risk!

When we look at bathroom attacks, I know of none that involved someone taking advantage of non-discrimination laws.  Yes, some women have been assulted in bathrooms.  Here’s a the first few reports I found of women being assaulted in the bathroom (I have nothing but sympathy and sadness for the victims and anger and a desire of justice to be served for the attacker):

In no case was the man presenting as a woman.  That’s important.

NYC has a good non-discrimination law that applies to a bathroom.  Yet a man was still caught and held accountable.  He doesn’t get a free pass to assault someone because of a non-discrimination law.

Lack of a non-discrimination law or policy applying to trans people at UNC and Taylor did not stop a man from entering the bathrooms to do wrong.  After all, sexual assault is a far worse crime than being in the wrong bathroom (which is probably not against the law anywhere in the USA unless you are committing other crimes).

Again, none of the perps were presenting as women.  It’s not the trans person you need to fear.

Yet, we can see horrible attacks against trans people using the bathroom.  Search for “bathroom”, “trans”, and “attack”.  Here’s two of them:

Both these attacks were particularly violent, even compared to the attacks against women by men I mentioned previously.  If you can stomach it (the attacks were both very violent, which is the norm for attacks against trans people – it doesn’t seem like trans people get “sort of attacked” – it’s usually a rage-fueled attack that goes well beyond a mere assault), read a bit about the above.  “IT” was literally carved into the man in the first one, for his crime of using the men’s room.  No doubt someone who looked like a man wouldn’t have been treated better in the women’s room – and this shows that the attacks against trans people aren’t based on safety – clearly the transman was no threat to the attacker.  In the second case, a transwoman was violently beaten – by women, not men – after using a bathroom in a McDonalds.  Workers and customers not only watched – some filmed it.  You can watch the video. Watch it and note how only few tried to stop it (an elderly woman did try – probably the least physically capable person of stopping the attack actually tried, while everyone else watched).  If she was a non-trans woman or a child, do you think they would laugh at a non-trans woman or child getting beaten so badly (you can hear that on the video)?

I’ll note that in the McDonalds incident, it was women, not men, doing the assault.  Trans people are at risk both from men and women.

You want to tell me about the safety of women?  Go watch that video of two women attempting to kill Ms. Pollis while others watch and laugh.  Don’t you dare fucking lecture people about safety until you actually give a shit about women like Ms. Pollis.

And before you lecture me for saying “fuck”, I hope you are at least just as angry that we have a society where trans people can have “IT” carved into them and attempted murder is filmed rather than stopped, if the victim is trans.  If not, your priorities are quite fucked.

Did I mention that a few weeks prior to that attempted murder, a bill failed in the Maryland legislature that would have recognized transgender people as facing prejudice, and provided them similar protection as is provided to gays?  It failed this year too.  It should be noted that even in 2011 (it had failed at least 4 times previous), there was no provision for applying protections to trans people in public accommodations (that was an attempt to compromise and pass the bill – the previous attempts had that language).  More proof that compromise is not something everyone is capable of doing.  Of course why did people think removing that language would help?  Because of the bathroom issue.  Whenever public accommodation protections come up, so do bathrooms.  And thus when these laws are debated, people start talking bathrooms.  Could that have influenced the attackers in Maryland?  Quite possibly, yes.

So, yes, we need to have the conversation about safety.

But that’s not the conversation we’re having.  We’re talking not about making bathrooms safe for everyone, but instead about how to pander to people’s bigotry, bias, and ignorance.  That’s how much society seems to hate trans people: rather than discussing how to stop attacks like the USC-LB and Maryland attacks, we’re talking about discriminating against the people who are getting attacked so that ignorance, bias, and bigotry can continue unchallenged.

Balancing on the Edge of the Toilet Bowl

We need to balance the rights of everyone.  Uh, sure.  But not that way.

We hear this statement – we need to balance everyone’s rights – when someone’s rights are being denied.

Ancient Roman latrines / latrinae, Ostia Antica.  There is considerable scholarly debate as to whether these roman latrines were gender-segregated.

Ancient Roman latrines / latrinae, Ostia Antica. There is considerable scholarly debate as to whether these roman latrines were gender-segregated.  Toilets are a controversial subject!

In Colorado, we have a pretty awesome Division of Civil Rights.  They recently ruled (PDF via Transgender Legal Defense and Education Fund) that Coy Mathis, now a second grader, has the right to use a bathroom that matches her gender identity (she is a trans girl).  While Coy has left the discriminatory district and is planning to attend school in another city (a wise decision, as retaliation if subtle can be hard to prove), this decision will help many other people in a very practical way – the right to go to the bathroom.

One of the arguments we heard during the debate from the discriminatory district was that this was a “complicated situation” (that means “I don’t really want to discuss this publicly or have it questioned – it’s too complicated for simple public discourse, after all…”) and that the district couldn’t extend special rights to one student (or a small number of students) at the expense of the majority.  Of course the special rights tactic isn’t new, particularly from that area of Colorado, as it gained great prominence in the Colorado Amendment 2 battle (the formal title of Amendment 2 was “Colorado No Protected Status for Sexual Orientation Amendment, Initiative 2”).  There were three reasons given to the general public at large for the need to pass Amendment 2:

  • Passage will provide for the safety and well-being of children (that is, allowing non-discrimination ordinances to exist would be bad for children because then they’ll hear that gays are equal and are supposed to be treated well, which, apparently, will make more kids gay).
  • Gays are making a lifestyle choice, which shouldn’t be protected in the same way things that are not choices should be protected.  We shouldn’t “protect sin.”
  • Gays are a very small minority, so nothing is wrong when a majority of people believe something is wrong and vote to codify their moral beliefs in law, even if it affects that minority.  They are outnumbered.  Special rights for gays that YOU don’t get.

Of course most people know that being gay isn’t a lifestyle choice.  So I’m not even going to dignify that with an argument.

As for harm to Children, that was prominent part of the Amendment 2 TV advertising.  For example, one anti-gay ad (click to watch) used the following voice-over, “School kids are taught this lifestyle is healthy and normal.  By law.  Do we want to protect our children?  Yes we do!  Vote yes on 2!”  The implication is that children will be infected by gay, I guess.  There is of course children on the other side of the issue – as Judge Kennedy wrote, when striking down part of the Defense of Marriage Act, anti-gay laws serve to “[humiliate] tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”  So that leaves us with the third point.  I’ll address this along with the next argument.

The third argument in favor of Amendment 2 was the argument that the majority trumps the minority has been used forever.  Essentially the majority will claim, “If we recognize rights for the minority, we’ll lose rights.  And it’s not right that the majority loses rights.”  It was special rights for gays.

(note that I’m not equating gays and trans people – but the issue is the same, just as the historical opposition to desegregation is similar to the opposition today against LGBT people).

And that’s where we are today.  The idea is that somehow the rights of the majority are violated when a trans child uses a bathroom aligned with the child’s gender identity.  Sometimes you’ll hear the same Amendment 2 style safety concern, or a slightly different one along the lines of “They are going to let perverts into your girl’s bathroom.”  The “special” right of being able to use a bathroom that matches your gender when you need to urinate doesn’t apply to trans people.  After all, we have to think of the right to be safe while using the bathroom.

That’s where the argument is today – there are two parts to the argument that allowing a 2nd grade transgirl to use the girl’s room is dangerous and thus a violation of more people’s rights than prohibiting her use of the bathroom would be:

  • Women, girls, and, to a lesser extent, boys have the right to be safe from others
  • Trans people are dangerous

Few people would disagree that people using the toilet have a right to be safe – just as during Amendment 2 in Colorado, few people were opposed to protecting children – the disagreement was whether or not being able to fire gay people in Boulder, CO for being gay had anything to do with protecting children.  Of course what is lost in this argument is that trans people also have the right to be safe – both psychologically and physically.

There are few if any (I know of none) incidents of a trans person using a bathroom and then assaulting a woman or child in that bathroom.  There sadly are many incidents of trans people being beaten, kicked, insulted, humiliated, and threatened for using a bathroom – and this is true no matter which bathroom they use.  But balancing the rights of Coy Mathis and the other students, in the eyes of some, means segregating Coy from other girls because Coy is the problem.  If she can use the bathroom, that would be the same as letting a man use the bathroom.  It would be dangerous.  Yet the evidence says otherwise.

The next response is, “Well, Coy is essentially third gendered.”  No, she’s not.  She’s a girl.  She doesn’t identify as “neither boy or girl.”  She identifies as girl.  There are people who don’t see themselves as either man or woman, but a different category – and this of course needs to be respected.  But in Coy’s case, she sees herself – as do her parents, doctors, and most of her teachers (but not district administration) – as a girl.  She’s not third gendered.  Using a staff bathroom (ironically they were single stalled, but still signed “men” or “women” – they were still gender segregated) would be stigmatizing to anyone.  Do you not think kids would notice and then tease someone who used a different bathroom?  Who was using a bathroom kids normally are prohibited from using?

Now, I believe in having private bathroom options for all people.  Certainly some trans people will use them.  So will some people that reject binary gender.  And so will plenty of non-trans people who need extra privacy for whatever reason.  But it must be a choice, not forced, to remain free from stigmatization.

The right of Coy should be considered.  She has the right to be a girl.  Colorado law, fortunately, recognizes this.  Someone else’s “right” to not feel uncomfortable does not trump Coy’s rights.  No matter how numerous the uncomfortable people may be.  Besides, there’s an easy solution for people who don’t feel comfortable sharing the bathroom with someone else: use the single-stall bathrooms!  Coy isn’t the problem (statistically, it’s clear she’s not likely to harm others).  Perhaps it’s a good time to think about bathroom safety for all, since too many children are assaulted in bathrooms (by people who are not trans).

We also have good law already for someone who will violate someone else in the restroom.  The gender of the attacker isn’t the critical issue.  The act itself is.  And the law does recognize that certain acts shouldn’t happen in the bathroom.  For example, despite Boulder, Colorado having laws that prohibit discrimination on the basis of gender identity and expression, their porta-potty peeper was rightfully brought to justice.

There is no need to “balance” the rights of bigots with Coy.  The bigots are of course free to grumble and protest, but they aren’t free to discriminate, whether it’s Coy or a black student or a muslim student.  Their bigotry is not solved by discriminating against the object of their hate.

So, in summary, it is possible to balance the rights of the people who will be uncomfortable and the rights of Coy.  Let the people uncomfortable sharing bathrooms use private facilities.  Those of us who are fine with someone else urinating in another stall can then get on with our lives – and you don’t harm or segregate an innocent girl in the process.  She isn’t responsible for someone else’s bigotry or discomfort.