More than a month has passed since North Carolina enacted the controversial H.B. 2 (notoriously, the “bathroom bill”). What began as a small discussion about the role of gender in our society has crescendoed into a national debate, and on Wednesday, the Department of Justice reignited that debate, declaring H.B. 2 in violation of Title VII of the Civil Rights Act of 1964.
Conservatives argue the law is a common sense measure to protect deeply-entrenched cultural norms. LGBT advocates argue the law marginalizes transgender individuals by reinforcing gender as a binary construct (man/woman) rather than a continuum, as contemporary research suggests.
On this issue, conservatives are right.
I will concede there are a few things my ideological contemporaries get wrong. Gender as a continuum, for example, should not be an abomination to conservative values. With more than 7.1 billion humans roaming globe, the notion that a few will not conform to cultural or biological norms is hardly earth-shattering.
That fact alone, however, has no significant bearing on the conservative argument.
Importantly, there remain several objections by those supporting traditional understandings of gender that have gone largely unaddressed by North Carolina’s most ardent critics. Among these is: what makes a men’s restroom a men’s restroom (or women’s restroom a women’s restroom)?
At the core of this question is another question more familiar to LGBT advocates: what defines gender? It is a question often asked rhetorically to illustrate that no particular characteristic, physical or otherwise, is dispositive of one’s gender. A woman who undergoes a hysterectomy is no less a woman afterwards, and a man having lost his testicles in an accident may still claim his manhood. This blurs the concept of “man” as distinct from “woman” and demonstrates that such terms are social labels independent of one’s sex organs.
However, if it is true that sex organs are not determinative of gender itself, then surely sex organs cannot determine which “gender” a restroom is. Absent reliance on any other external characteristic, a restroom’s “gender” cannot be objectively defined, and a “men’s” restroom is indistinguishable from a “women’s” restroom. Without such a distinction, no basis can exist for a preference for one over the other.
A transwoman, therefore, should have no issue using a “men’s” room. In fact, for a transwoman to insist on using restrooms traditionally reserved for cisgender women in order to remain faithful to her own gender identity, she is necessarily saying that the quintessential “woman” must have a vagina — a decidedly gender binary viewpoint. It is, after all, entirely possible a transwoman may walk into a “men’s” restroom only to learn that her phallus-wielding bathroom companions identify as women as well, effectively making the restroom a “women’s” restroom.
Perhaps this is why LGBT advocates strive for “gender neutrality” or “gender blindness” (i.e., the dismantling of all gender distinctions in society).
This is a plainly absurd notion for two reasons.
First, without a reference to sex organs or traditional gender roles, gender can only be defined subjectively. Lacking the critical external validation of objectivity, the power to form a consistent definition of gender is nullified, making the terms “man” and “woman” utterly meaningless. Indeed, in a gender-blind society, the very act of branding yourself a “woman” or “man” would be either puzzling (what makes you a “man”?) or even insulting (why are you any more of a “woman” than I?). This is, ironically, what LGBT advocates despise about H.B. 2: it encroaches on the right to self-identify.
Second, if the above is true, both the gender binary society of H.B. 2 and the gender-blind society of the LGBT community require a portion of the country to betray their gender identity. The only question is, which portion should take the hit?
The Williams Institute at UCLA estimates that 0.3 percent of the United States is transgender; the other 99.7 percent is not and more-or-less fits a binary construct. Abandoning gender binary in favor of a purely gender-neutral society would necessarily require 99.7 percent of the population to forsake their own gender identity.
That certainly seems unjust. If both gender-binary and gender-neutrality are defined in a way that excludes others either explicitly or consequentially, what makes one more “right” than the other?
Thomas Wheatley is a law student at the Antonin Scalia Law School at George Mason University in Arlington, Va. Email him at twheatl2@gmu.edu.