As I predicted last summer, transgender rights have continued to loom large in the national conversation. Every day brings another story. Today it’s a front-page Times article about a trans boy in a small town in Vermont and the disagreements over what bathroom s/he will use in high school. Yesterday it was a RAND Corporation study, commissioned by the Defense Department, which found that allowing trans soldiers to serve openly, in the words of one defense analyst quoted in the piece, “is a nonissue in terms of the impact on the budget, military readiness, unit cohesion, and morale.”
And the other week it was the eruption of legal action and political angst in North Carolina, where the passage of bathroom ordinances restricting use by birth gender has generated a large backlash, with the federal government intervening on behalf of the right of trans people to use the bathroom of their choice, and a counter-backlash, with traditional-minded Carolinians expressing resentment at the federal government for stepping in. The driver for such stories is a directive, issued by the Education Department to schools, that extends Title IX protection, which bans discrimination based on sex, to transgender people. President Obama has clarified and forcefully defended the directive, and its application to school facilities, as a matter of protecting children’s dignity.
In all these “pee in peace” controversies, I’m struck by two questions. The first is practical. As pragmatic Americans shouldn’t we be asking ourselves, how in the world can one enforce a bathroom ordinance such as the one passed by North Carolina? Even if you granted legitimacy to the idea of assigning bathrooms by birth gender, how would you make it work? Would we employ someone for every bathroom in the US? And what would they do? Check birth certificates? Check genitals?
And if a law or regulation is blatantly impracticable and unenforceable, what is the point of passing it in the first place?
Which leads to my second question. Can we discuss, straight on, what’s really at stake here? I don’t believe for a second that the impetus behind these ordinances is truly a concern about the safety of children. As I wrote in December, the notion that a male sexual predator would pose as a transwoman to gain access to women’s rooms and violate girls is both a straw-man argument and a canard. And given that trans people make up a truly tiny segment of the U.S. population (0.3% of the adult population, according to one widely cited study, and perhaps 1% of the teen population), it’s clear that the outsized furor is really about something bigger.
What’s really behind these initiatives is discomfort at the trans phenomenon itself, a discomfort grounded in tradition, backed up (generally speaking) by religious views of creation, and rooted in the belief that a bright categorical line demarcates male from female -- and that this distinction is not, as some trans advocates say, merely a form of oppressive binary-ism. Having the federal government line up behind the notion that gender is a spectrum and/or a choice makes some people feel anxious and/or resentful, and they are using these highly symbolic bathroom laws to express that feeling.
Can’t they just say so? On a recent segment of the ever-helpful NPR show, On Point, host Tom Ashbrook interviewed a lawyer for one of the groups supporting these ordinances. The lawyer argued that “putting a biological man into a women’s locker room... creates a hostile environment that violates sex discrimination standards” and “tramples... the constitutional right to bodily privacy” of students using the facility. “How can the Obama administration tell schools that you have to insert men into women’s locker rooms because of Title IX,” he asked, “when that’s actually a violation of Title IX?”
That argument struck me as sophistical, even mischievous. But what seemed more straightforward was his response when Ashbrook asked whether he was simply rejecting the notion that a transgender boy is a boy. The lawyer answered that “our law has always recognized” biological difference as fundamental. “Biology is what drives the analysis here,” he continued. “It’s not someone’s perception of who they are – it’s what their biological and anatomical characteristics are. Those are not things that change depending on how you perceive yourself to be.”
That gets closer to what is in play. American liberalism views just about everything as a social construction; its aversion to the word “natural” is almost as strong as its aversion to “religious.” Beneath the bathroom-ordinance controversies is the question of identity and what – and who – determines it. Do we really have limitless freedom to define ourselves? We are a society that prizes choice above almost all else. When the Times reported on the difficulty of obtaining credible statistics on the incidence of transgenderism among teens, it cited a typical survey question -- “Do you identify as: a) male, b) female or c) transgender?” – followed by a comment from the director of a gay-straight alliance group, who said, “That is a terrible question because you can only select one.”
The case in Vermont brings this question clearly to the fore. The student is a fifteen-year-old biological girl who has not altered her appearance through any intervention – no hormones, no surgery. Having changed her name from Autumn to A.J., s/he straps her breasts down, wears bulky chamois shirts, and calls herself a boy. Though the school has half a dozen single-user, gender-neutral bathrooms, A.J. prefers to use the boys’ bathroom. The private bathrooms are inconveniently located, A.J. says, but it seems pretty clear that using the boys’ bathroom is an important symbolic affirmation of the new self that s/he is trying to bring forth.
The boys who are peeing at the urinals, meanwhile – “their private parts exposed,” as the Times writes – don’t like it when A.J. comes in. “It’s just weird,” one of them says. Even A.J. admits that it’s weird. “The guys, they look at me like I’m some kind of freak, or they’re concerned or scared.”
Is gender wholly self-declarative? Is A.J. a boy, just because s/he says so? And as for those people who believe the answer to that question is “no,” are they ipso facto “bigots and yahoos,” as a Yale law professor asks in an op-ed, or do they have a legitimate point of view that deserves something other than dismissal or scorn? Along this line, is the equation with the civil-rights struggles of African-Americans a just and illuminating parallel, or a faulty one? Is it fair to view those who have qualms about transgenderism as morally equivalent to those who opposed equal rights for black Americans – who might have expressed “qualms” about, say, interracial marriage?
The current set of conflicts contains all sorts of complications. These bathroom ordinances, if successfully enforced, would result in some instances in which a transgender male – a former girl who, after hormone treatments, might have facial hair, might be bulked up muscularly, might in all obvious respects appear male – is forced to use the girls’ bathroom, in effect creating the very problem that the ordinances seek to avoid. On the other hand, it’s significant that the federal directives apply not just to bathrooms, but also to school dances, sororities and fraternities, and so on, in any school or university that receives federal funding. This includes sports teams. 60 Minutes reported recently on a female high school swimmer who became a trans man and competed with the male college swim team at Harvard. A standout swimmer as a female, he struggled mightily for marginal success as a male. But what about the other direction? Without doubt we will someday soon face the prospect of a 6’ 6” biological male basketball player who transitions, then attempts to join the girls’ or women’s team. What to do about this “Renee Richards problem?” It seems wrong to allow a biological male to dominate a girls’ team merely by virtue of the advantages that accrue to maleness.
It’s all mighty confusing, no doubt. And even those dedicated to using federal power to promote and protect the rights of trans people face tactical questions. When it comes to social and attitudinal change, what is the optimal timing of federal intervention via federal departments and the courts? Should these entities lead and plow the way for change, or rather sit back and act, eventually, as a powerful ratification, and catalyst, of change that is already happening on the ground? The shorthand for this tactical choice might be, Brown v. Board of Education, or Obergefell v. Hodges?
Meanwhile I asked my daughter, who is ten and in fourth grade, if she would be upset if a person who identified as female, but who still had a penis, used the same bathroom she did at school. Her answer: “It wouldn’t bother me, because if that’s who they feel they are, then they are that person.” And here is the story of a Republican congresswoman from Florida whose views were changed by the experience of her trans son.
The congresswoman’s conversion reminds us that personal experience has a way of tempering judgment with kindness, love and sympathetic understanding. Christianity is a religion particularly rich in these qualities. Yet it is also one clearly based on a “binary” understanding of humanity – man and woman -- in the scheme of creation. Pope Francis’ mission so far has been, one can fairly say, to urge understanding, acceptance, kindness and love over a priori category judgments in our dealings with one another – to emphasize a pastoral rather than a theoretical approach, in other words, to the authentic and often suffering humanity that such controversies disclose.
In the fog of cultural battles we need to be recalled to clarity. When the moral intuitions of popes and children run in tandem, it’s probably worth paying attention.