Transgender Bathroom Laws: A Return to Jim Crow?

by walterm on December 18, 2016

On a bike ride the other day, I got into a discussion with a fellow rider about some of the transgender bathroom laws and policies that have been in the news as of late. My friend felt that allowing people to use a bathroom based on their gender identity as opposed to their biological gender is a matter of equal rights, but at the same time felt conflicted because he sees the trend of extending this “equality” to children who are barely old enough to know what sexuality is. His wife teaches at a middle school, where the transgender issue has presented itself as a matter of policy. Because of the LGBTQ lobby and all of the noise they are making about transgender issues, it is tragic that young children even in elementary school suffering from gender dysphoria are being encouraged to make specific choices about their gender and sexuality so early, which are choices that should wait until at least puberty since children go through a variety of changes as they are growing. In times past this was a private matter to be mediated between the school and the parent when it became serious for the student, and certain accommodations needed to be made. But in our now uber sexualized society, it is no longer a private matter but now sadly a matter of public policy and, of course, politics.

What I want to address here is my friend’s notion of equality, as the word equality is so overloaded now as to have little real meaning. I believe his understanding of the word is generally the way the term has been used historically, but he made a comparison of the transgender bathroom issue to slavery, to which I took great exception. In the case of slavery, human beings were being deprived of their fundamental, constitutional rights to life, liberty, and pursuit of happiness. Under slavery in the U.S., blacks were nothing more than property, in the same and equal manner that a horse or a head of cattle would be property. Ultimately, he agreed this situation was not comparable. But my friend was more sure that laws not allowing a transgender person to use the bathroom coinciding with their perceived gender could be the equivalent of Jim Crow laws (separate drinking fountains, bathroom facilities, etc.) that sprung up after the Civil War and continued well into the 20th century until outlawed by the Civil Rights legislation of 1964. In my view, though, to argue that denying transgender persons from entering a bathroom based on perceived gender as opposed to biological gender is hardly denying them “equal treatment” since male and female are obviously not “equal” from the perspective of sexual orientation. Men and women are, as if it needs to be stated, different.

What we still need is to unpack this argument for “equality” to draw out appropriate distinctions that I think will illuminate why it is neither fair nor logical to draw an equivalence between slavery or segregated facilities to transgender bathroom policy. I have shown the slavery case does not apply, so I will focus on Jim Crow segregation laws since this equality debate is about the usage of facilities, with bathroom facilities specifically in view. In the case of Jim Crow segregation laws, the reasons blacks were separated from whites was because of the belief they were fundamentally inferior and undeserving of respect. They were seen as little more evolved than common animals, with whites being the most evolved of the human species. Now when we compare this to the reason there are separate bathroom facilities for men and women, we see that is done as a matter of privacy and modesty with not the slightest bit of ill intent. Yet when the notion of transgender issues come into play, what is a basic common sense acknowledgement of the difference between sexes has now become a matter of intentional discrimination against an “aggrieved” group of people that never existed before.

So, I respectfully challenge the assertion of my friend that separate bathroom facilities for men and women based on a biological distinction is in any shape or form, a question of “equal rights” or a return to Jim Crow. What he is calling “equal” is the notion that someone simply stating that because they believe in their mind they are of a different sex means they actually are of a different sex, and thus their sexuality is “equal” to that of a person who is biologically of the opposite sex. Solely as a thought experiment, if I were to say to my friend that I believe I am the husband of his wife, and thus that makes me “equal” to him and that I have an equal right to his wife, would that actually make me the husband of his wife? I know that he would passionately disagree with me and, arguably, so would his wife! The truth is that I am not the husband of his wife and I cannot logically declare myself his equal no matter how sincere my belief. Now this is not to trivialize those who truly suffer from gender dysphoria, which is a real mental health issue that must be treated with the attention and respect that it deserves. What I am arguing is this is not a matter of “equality” or “equal rights” and should in no way be equated to past Jim Crow laws. It is, in my view, an inappropriate and emotional victimization argument, complicating a matter whose resolution I think will never be allowing men in women’s restrooms or vice versa.


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