26 April 2016

A note on bathrooms

Much fussiness has arisen over who gets to use which bathroom. This seems incredibly paranoid and silly at best, but mainly doesn't seem like something that requires laws. Which is to say: transgendered persons have been using bathrooms of their choice and intention for years without much in the way of public complaint or incident. Nobody really noticed or cared. Why this arises now? Most probably because anti-gay bigotry is less popular to express, but some version of it still demands expression. This is as close as some people can get. Laws restricting the behavior of homosexuality are unenforceable and unlikely to pass muster in courts. Trans persons are a relative unknown, very few people know much about the biology involved (and people's eyes will glaze over when you try to explain the available neuroscience to them), and they represent an even smaller minority that is thus easier to pick on. Any legal fight is still perceived as uncertain.

What we are seeing is that there is a strong cultural fight ongoing, where businesses and liberals and progressives are (generally) allies, social conservatives are off on a strange island, and there is some number of people in the middle who don't yet know what to think of any of this and perhaps harbor vaguely creepy and uninformed notions about who or what transgender means in society and as a set of behaviors. As with abortion, this physical and moral uncertainty (and even fear) can sometimes privilege very restrictive legal actions that are inappropriate or unnecessary, even as an intention to alleviate some alleged social or health related problem. To be clear, I feel I know very little about this subject myself. I've written about it before with some circumspection. What I do know suggests very little of the public debate has had anything to do with the behavior of transgendered persons, the reasons for it, the norms enforcing that behavior, or really much of anything with respect to the actual fears of people involved.

There are pretty strong norms about bathroom use; that someone going into the women's restroom should look like they belong in that space for example. But even these allow for some things like a parent taking small children into the "wrong" bathroom, or women using the men's room stalls at large events (sports or concerts), and so on. Creating laws which might rigidly define who can use what bathroom seems typically unnecessary. Social conventions are quite capable of handling this question in a "common sense" way without messily involving the law and its blunt instruments of gender assignments. And the implication of law is that somehow we must be enforcing these restrictions. Using what methods? This is a question generally left unexamined. Would we punish women who look insufficiently feminine for using the "wrong bathroom"? How would we even tell someone who has had sex reassignment therapy or surgery is in the "wrong space"? Is someone going to be assigned to check IDs? Or check people's bits? Again, social norms will tend to enforce these conventional situations more than adequately without these mixed up scenarios.

The creepy "men will get dressed up as women to watch women peeing" or some such narrative pushed by many men on this point makes no sense in relation to this subject. Men can already do this. They generally don't. In large part because social norms and (yes) laws will punish such behavior. And in any case, there's plenty of this rather odd sexual fetish available relatively freely on the internet (presumably including varieties where men have dressed up as women). Mostly this suggests something is wrong with the person making this argument, that they think this is something people would suddenly start to do that they somehow cannot right now. It has little to do with what makes someone transgendered that someone "decides" to use a "different" bathroom, much less for the purpose of creepily staring at women or children. Such a conversation is like speaking a different language with an alien species and rarely amounts to productive conclusions.

There isn't in fact very much danger in public restrooms for sexual abuse. Upon women or children. Think about what this argument suggests for a moment. A random stranger, someone totally unknown to a woman or child, will sneak into an inappropriate bathroom where there may be an unknown quantity of persons within, often doing so in full view of store security or video surveillance, and most likely with a guardian, friend, or parent nearby to the person they wished to target for abuse, who then will have ample opportunity to resist and to call for help in a public location where other human beings might hear them and assist. There are many reasons that sexual abuse is nearly always perpetrated by someone known to the victim (for children, the percentage of known abusers approaches 95%. Random assaults or even kidnappings are vanishingly rare). But these are all pretty strong arguments against the fear of random strangers in public bathrooms, not arguments in favor of laws relating to who can use what restroom. We are imagining a fear that doesn't actually exist, and not creating a new scenario that didn't already exist by allowing people to use the bathroom in which they are personally most comfortable. More to the point, rates of sexual assault itself have been declining. The actual danger being identified, a risk of something untoward happening while someone is in the vulnerable position of relieving their body of physical waste, is already unlikely, and is in a category of crime that is itself less and less likely.

One problem I have been seeing is that comparisons are being made to demand laws or stronger social efforts to punish sexual offenders (instead of these kinds of silly laws regarding restrictions on transgendered bathroom selection). We already have a vast infrastructure of laws punishing all manner of lewd and inappropriate behaviors, sometimes severely, in addition to laws punishing sexual assault and rape and other more morally reprehensible crimes. Thousands of people are required in most US states to register as sex offenders, to be restricted on where they may live, contact with family members is often heavily restrained (assuming their offense was not involving such, family is often a key method of reintegration to society as it provides a basis of support), to have social stigma attached to them from neighbours who often wrongly infer their actions make them a threat to their children, job restrictions on where they can work or what kind of work they can do, and so on. The vast majority of these people did not go around molesting children, raping women, or other heinous actions of sexual predators. Therefore I would submit that the idea that we should punish sexual offenses more severely or more readily is already an idea we have taken to heart and practiced as a society. We already do it at a prodigious rate.

To be sure, there are still problems in how many people, including some police and prosecutors and judges, perceive rape and sexual assault, and the methods of adjudicating claims thereof are still often fraught with he-said-she-said difficulties, and problems in how swiftly and readily evidence is processed for criminal convictions (or as proof of innocence). And there are serious questions of sexual consent (and communication regarding sexuality in general) that are still awkwardly worked out for many young people in a way that disadvantages them from the healthy and consensual enjoyment of the human form. But our eagerness to punish sexual misbehavior reaches far beyond these questions and often ends up vigorously criminalizing (generally natural) sexual exploration by teens, drunken stupidity like public urination, and on down the list. This is where we go when we want to punish sexual misconduct as a society. And not toward more violent and non-consensual criminal actions. We should be careful to look at an imaginary danger, some vast looming threat posed uniquely by transgendered persons using the "wrong" bathrooms in public, and not replace it with other imaginary dangers in the effort to dismiss the former.
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