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“Bathroom Bills” Are Fucked Up; Let Me Count The Ways

By Katie O’Brien

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Nearly a year after South Carolina had to be nationally shamed into removing the Confederate flag from the lawn of the state capitol building, North Carolina appears to be vying for the title of “Worst Carolina.” With the passage of HB2, North Carolina has mandated that in public buildings like schools and libraries, people must use the bathroom that corresponds with their assigned “biological” sex. The basis for the law is that cis women must be protected from “men” entering the bathroom to prey on them. But this law, of course, most directly affects trans people, who are now prohibited from using the bathroom that corresponds with their gender identity. When even Donald Trump decides your law is too extreme for him to support, it must be pretty bad.

The United States does not have much of a precedent for protecting LGBTQ people to begin with; only 18 states have a law prohibiting discrimination on the basis of gender identity or sexual orientation. While North Carolina is so far alone in having a governor sign an anti-LGBTQ bill, it is not the only state with congressional support for such laws—making North Carolina’s HB2 part of a disturbing and recent trend of legislation across the country that actively discriminates against trans people and non-binary people. Just in 2015 and 2016, similar bills have been introduced, and in some cases passed in congress, in South Dakota, Florida, Texas, Kentucky, and Wisconsin.

These laws also erase non-binary and gender nonconforming people, who along with trans people, are often harassed in bathrooms when people deem them to be the “wrong” gender.

It should be noted that the norm of buildings having two bathrooms labeled “male” and “female” presents a problem for many people to begin with. First of all, anyone who has taken a gender studies class has learned to question the idea that everyone has clearly categorizable biological sex that falls into a neat binary. One in 1,500 to 2,000 people are born intersex, and like everyone, they may have any variety of gender identities, or no gender identity at all. Laws assuming a biological sex binary erase the existence of thousands of peoplewho, I guess, cannot use either bathroom now. These laws also erase non-binary and gender nonconforming people, who along with trans people, are often harassed in bathrooms when people deem them to be the “wrong” gender. Non-binary media personality Tyler Ford tweeted, “I already avoid public bathrooms due to fear of harassment but the fact that laws are being written to PROMOTE this harassment? terrifying.”

The logic behind these “bathroom bills” is based on many false and harmful ideas about trans people. For one, conjecturing that people must use the bathroom that corresponds to their assigned sex at birth rather than to their gender identity implies that a trans woman is “actually” male and a trans man is “actually” female (and that non-binary and intersex people do not exist). Ted Cruz disgustingly exemplified this fallacious way of thinking when he claimed that trans women using the women’s restroom is the equivalent of Donald Trump entering the women’s restroom “dress[ed] up like Hillary Clinton.” These politicians fail to understand, or refuse to recognize, that trans women are women, and trans men are men. The distinction of “trans” versus “cis” is only necessary due to gender norms that are so embedded that people who do not present as traditionally masculine or feminine enough are discriminated against.

But even worse than these bills’ fundamental misunderstanding of gender identity is the rhetoric in support of them that both buys into, and helps perpetuate, the myth that trans people are mentally disturbed, sexually deviant, and/or dangerous. Florida State Rep. Frank Artiles, who introduced a similar bill to HB2 in Florida last year, claimed that the bill’s intent was to reduce “the potential for crimes against individuals using those facilities, including, but not limited to, assault, battery, molestation, rape, voyeurism, and exhibitionism.” Ted Cruz, again showcasing a unique ability to say the most skin-crawlingly egregious thing possible, said in support of North Carolina’s bill: “The idea that grown men would be allowed alone in a bathroom with little girls—you don’t need to be a behavioral psychologist to realize bad things can happen.” He later went on to suggest that trans people should simply pee in their own homes, so as not to “impose” their lifestyle on anyone else.

“It’s fascinating that male lawmakers like Artiles, Cruz, and North Carolina governor Pat McCrory are suddenly so interested in prioritizing the prevention of violence against women—or any issue that affects women—for the first time in their careers.”

It’s fascinating that male lawmakers like Artiles, Cruz, and North Carolina governor Pat McCrory are suddenly so interested in prioritizing the prevention of violence against women—or any issue that affects women—for the first time in their careers. Except the danger they are claiming to “protect” (cis) women and girls from is entirely fabricated—there has not been a single documented case of a trans person assaulting someone in a bathroom, ever. So why are they doing this?

Legal studies professor Katie Oliviero argues in “Vulnerability’s Ambivalent Political Life” that “conservative sociolegal frameworks recognize some forms of precarity and write others out of existence.” She shows that rather than being equally applied across society, the status of “vulnerability” is only granted to the groups already in power. In this case, cis women’s supposed vulnerability is being touted, while trans women’s actual vulnerability is erased. That’s why promoting the idea that trans people are disturbed and dangerous, and that cis women need protection from them, is so harmful and backwards—because trans women, especially those of color, face higher rates of hate-based harassment, sexual violence, and homicide than any other group. This violence is enacted against them overwhelmingly by cis men, and has been increasing in recent years, hitting a historical high in 2015.

Yet violence against trans women of color is an epidemic that largely remains institutionally invisible. Among all 53 known murders of trans women in the U.S. between 2013 and 2015, not a single one was prosecuted or reported as a hate crime. There is zero risk to be had from trans women sharing a bathroom with cis women; there is, however, a lot of risk for trans women sharing a bathroom with cis men. HB2 and the destructive rhetoric around it does not just affect trans and gender-nonconforming in North Carolina, but all over the country. On April 29th, it was reported that a Texas man was patrolling the entrance of the women’s restroom, and confronted a woman with short hair whom he “thought was a man.” The demonization of trans people by lawmakers has made it so situations like this are sure to continue to increase, and sure to escalate to increased violence.
Oliviero goes on to argue that through the selective legal recognition of vulnerability of those in power, the framework of vulnerability “can function as a mode of sexual and social regulation,” leading to “the institutional production of deviancy.” The notion of “protecting women” as a justification for discriminating against and controlling the movement of a marginalized group is nothing new. This is the same type of farcical rhetoric that was deployed during the Jim Crow era; the framing of black men as sexual deviants who endangered white women was nothing more than an excuse for segregation with the simple goal of keeping white people in maximum power. The fact that cis women’s safety is clearly not at stake here, and the fact that lawmakers clearly know these laws are not enforceable, show that HB2 and laws like it are never actually about protecting women at all. They are nothing more than a form of social control, conceived with the purpose of enforcing a traditional gender binary by telling trans people that their existence is unwelcome. And not only do they perpetuate and promote a harsh stigma against trans and gender nonconforming people, such laws also give everyone else permission to discriminate and even enact violence against them.

This places people in a double-bind where they are criminalized for entering the bathroom where they are safest and most comfortable, but put at perhaps a greater risk for violence if they follow the law. Teagan Widmer, who runs an app called “Refuge Restrooms” that pinpoints gender neutral restrooms, summed up this impossible and flat-out dangerous position this law places her in as a trans woman: “In a woman’s restroom I might get called a man and yelled at, but while using a men’s restroom I might get called a faggot or a tranny and then beaten up. It doesn’t seem like a controversial issue to me, it’s pretty simple. People need to pee.”

But as a cis woman, I have no reservations in stating definitively that “women’s safety” being deployed as an excuse to discriminate against trans people is ignorant and hateful.

In the end, my voice cannot adequately speak to the depth and impact of this issue on trans people. But as a cis woman, I have no reservations in stating definitively that “women’s safety” being deployed as an excuse to discriminate against trans people is ignorant and hateful. As Salon’s Amanda Marcotte put it on Twitter, “Trans people in bathrooms aren’t creepy. Republicans who are clearly sitting there wondering what you have under your pants certainly are.” Trans women are not a threat to cis women, and any discussion of “women’s rights” by cis women is incomplete and biased without the inclusion of trans women. Anyone who truly cares about women’s safety should start by trying to help combat the cultural and systemic forces that enable the pervasive discrimination and violence against trans women; they are the women whose safety is the most threatened.

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