The concept of gender is no longer solely a matter of personal conviction. Instead, it has become the center of public controversy, and it cannot be avoided.
On one side are those who argue that any person, any time, should be able to use the bathroom that corresponds with his or her current gender identity. To do otherwise, they claim, would be to commit heinous discrimination. The recent directive from President Obama and his administration exemplifies this stance.
For the full transcript of this letter from the U.S. Department of Justice and U.S. Department of Education, click here.
Though many argue that this puts others at risk, advocates for the gender revolution claim that these concerns are unfounded. Read the following article for one example (Source).
“Debunking Bathroom Myths”
When the Houston Equal Rights Ordinance was defeated, the ostensible reason was that Non-Discrimination Ordinances (NDOs) which include gender identity allow criminals to pretend to be transgender in order to gain access to bathrooms for nefarious purposes, and that sexual assaults and rapes in women’s rooms would increase. The problem is, absolutely nothing in that sentence is actually true.
NDOs don’t make Illegal Behavior Legal
It is illegal, regardless of whether an NDO is in place, to enter a bathroom to harm or harass people. When sexual predators do commit sexual assault in bathrooms, they don’t need to pretend to be transgender and exploit NDOs to do so. People commit also acts of voyeurism with our without NDOs in place, and don’t need to pretend to be transgender to do so either.
Police and Women’s Sexual Violence Advocates say NDOs do not Increase Risk
Experts on crime, like the police, state over and over again that NDOs do not result in an increase in sexual assault or rape. Spokesmen for police departments in Iowa, Hawaii, Colorado, Connecticut, Maine, Massachusetts, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Texas have all gone on record stating that NDOs do not result in an increase in the number of reported rapes or sexual assaults in their jurisdictions. In fact, 17 states and 200 cities have such NDOs in place, and have not had an increase in sexual assault.
Similarly, experts who advocate for sexual assault victims in these states with gender identity inclusive NDOs state the same thing: NDOs which include gender identity do not result in an increase in the number of reported sexual assaults.
The Actual Numbers Make it Clear why Anecdotes are just Anecdotes
When looking at this statistically, it is pretty easy to understand why this is true statistically. Over the 35 year history of NDOs protecting transgender people all over the world, only one case of a person abusing an NDO and committing sexual assault (in Canada) has ever been found, even by those most interested in demonizing transgender people.
Think about that for a moment.
Every NDO, every person, every bathroom, every day, every trip to the loo, for 35 years, and it’s happened once in the entire world.
For sake of context, the FBI reports that over 84,000 rapes were reported in 2014 alone, none of which exploited gender identity inclusive NDOs to commit sexual assault. To put the relative risk of people misusing NDOs in perspective another way statistically, five Americans have been shot by dogs in the past five years. Similarly, 450 people per year in the US are killed by falling out of bed.
No Research Suggests NDOs are Part of the Problem of Sexual Assault
Rape culture in the US is a tremendous problem that needs to be addressed with serious proposals. Peer-reviewed research and literature has looked at how to reduce rape for decades. Some new methods at US universities are showing success. None of the literature or proposals mentions barring transgender people from bathrooms, or eliminating gender identity inclusive NDOs, as a way to bring down the number of sexual assaults in the United States.
Panic over Trans People in Bathrooms Hurts Non-Transgender (Cisgender) People Too
The counter argument that “we can’t take the risk” is disingenuous, and ignores the actual consequences of bathroom policing transgender and gender non-conforming individuals. Recently, a cisgender (non-transgender) woman whose gender expression did not match societal standards was violently and humiliatingly thrown out of a restaurant in Detroit for using the women’s bathroom. She is currently suing the establishment. A similar incident happened in New York.
Treating All Transgender People as Predators has Dire Consequences
The demonization of transgender people has consequences as well. When visibly transgender people are constantly regarded as sexual predators and deviants, it increases the risk of suicide attempts. It also invites violence against transgender people, like the savage beating of Missy Polis in 2011 as she left a women’s bathroom at McDonalds. 2015 has also seen anti-transgender violence dramatically increase to record levels.
For transgender students, the consequences of having nowhere safe to go can be life threating. A trans-masculine student in Michigan held it so long that he was hospitalized with a life threatening kidney infection after he was banned from using the boy’s restroom, and bullied constantly for using the girls or staff facility. (Seriously, would you want to be the kid that the entire staff knows rendered their bathroom uninhabitable after taco Tuesday?) This isn’t simply anecdotal: survey data on transgender students shows that most face bullying and harassment, and over 1/3rd report being physically assaulted.
Perhaps the saddest irony in all of this is that transgender women who are undergoing medical transition are generally either taking medications, or have had had surgery, which reduces their testosterone to near zero levels. Clinically speaking, people in this category are one of the lowest risk groups committing sex crimes, and also at the highest risk of being victims.
Gender Neutral / Single Occupant Facilities are not a Complete Solution
Single use gender neutral and family bathrooms are part of the solution, but most existing businesses and government offices will be resistant to putting in another ne bathroom based on cost and space. Washington DC has a law where all single use facilities are now designated as gender neutral, but this is only a partial solution. As many transgender people and parents can tell you, finding such a facility when you (or your child) has to go NOW can be very difficult. You can test this yourself by trying to only use gender neutral facilities for a week.
Transgender Men Have Been Left out of the Conversation
This also raises the question of transgender men. Many transgender men look like this:
If a state were to pass a law that required people to use bathrooms in accordance with their sex assigned at birth, they would end up with lots of muscle-y, bearded transgender guys using women’s rooms. Which would be really uncomfortable for everyone involved, obviously. If a law were to only target transgender women, however, that would almost certainly fail upon legal challenge.
Solving an Imaginary Problem by Punishing the Innocent is Unacceptable
The upshot of all this is that fear mongering and legislation against transgender people using bathrooms has zero actual benefit, and many clearly understood consequences that affect both transgender and cisgender people. It’s essentially dealing with a non-existent threat by punishing an innocent group of people. Sort of like trying to prevent 5 year old Syrian orphans from conducting terrorist attacks in the US by beating up Sikhs.
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On the other side are those who believe that this aspect of the gender revolution not only puts others in harm’s way (particularly children), but that it also is a threat to religious freedom. Ryan Anderson, founder and editor of Public Discourse, thoroughly lays out this perspective in his background paper, “Sexual Orientation and Gender Identity (SOGI) Laws Threaten Freedom.” Read his introduction and conclusion below. For the full paper, click here.
Ryan Anderson
Introduction
America is dedicated to protecting the freedoms guaranteed under the First Amendment to the Constitution, while respecting citizens’ equality before the law. None of these freedoms is absolute. Compelling governmental interests can at times trump fundamental civil liberties, but sexual orientation and gender identity (SOGI) laws do not pass this test. Rather, they trample First Amendment rights and unnecessarily impinge on citizens’ right to run their local schools, charities, and businesses in ways consistent with their values. SOGI laws do not protect equality before the law; instead, they grant special privileges that are enforceable against private actors.
SOGI laws could also have serious unintended consequences. These laws tend to be vague and overly broad, lacking clear definitions of what discrimination on the basis of “sexual orientation” and “gender identity” mean and what conduct can and cannot be penalized. These laws would impose ruinous liability on innocent citizens for alleged “discrimination” based on subjective and unverifiable identities, not on objective traits. SOGI laws would further increase government interference in markets, potentially discouraging economic growth and job creation. With regard to “gender identity” and “transgender” teachers, students, and employees, SOGI laws could require education and employment policies concerning schoolhouse, locker room, and workplace conditions that undermine common sense.
SOGI laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions—convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination. These are the laws that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality.[1] They do not adequately protect religious liberty or freedom of speech.
In short, SOGI laws seek to regulate decisions that are best handled by private actors without government interference. SOGI laws disregard the conscience and liberty of people of good will who happen not to share the government’s opinions about issues of marriage and sexuality based on a reasonable worldview, moral code, or religious faith. Accordingly, these laws risk becoming sources of social tension rather than unity.
Of course, business owners should respect the intrinsic dignity of all of their employees and customers, but SOGI laws are bad public policy. Their threats to our freedoms unite civil libertarians concerned about free speech and religious liberty, free-market proponents concerned about freedom of contract and governmental overregulation, and social conservatives concerned about marriage and culture
Conclusion
The problem with SOGI policies is not merely that they are unnecessary, that they produce unintended but profoundly damaging consequences, or that they are based on a false analogy between same-sex marriage and interracial marriage. The main problem is even deeper: Sexual orientation and gender identity are radically different from race and should not be elevated to a protected class in the way that race is. There are no good historical or philosophical reasons for the law to treat sexual orientation and gender identity as it treats race—and doing so has serious costs.
SOGI laws are a solution in search of a problem. They pose serious problems for free markets and contracts, free speech and religious liberty, and the health of our culture and of pluralism. The main justification used to defend SOGI laws—that distinction made because of sexual orientation or gender identity is equal to invidious discrimination by race or color—fails conceptually, historically, and practically.
In this context, free markets and free contracts can and do provide the best solutions, while also respecting Americans’ freedom of association, freedom of religion, and freedom of speech.
