Some Thoughts on the Transgender Access to Restrooms Issue

These thoughts are not well rehearsed, but I am just putting them out there, if for no other reason than to start, or add to, the discussion.  I have two major reasons why I am against granting permission for persons to use a particular public restroom based on their sexual identity, an orientation which may change from time to time, depending on very subjective criteria.  One reason is that it is an assault on our constitutional rights.  Second, it is going to have many unexpected ramifications.   

Proponents of the transgender restroom access claim that the issue is civil rights.  No person, they say, should be subjected to discrimination, and denial of a transgendered person’s right to use the restroom of his or her choice should be illegal.  All things being equal, this argument may have merit.  All things, however, are not equal.   Three major obstacles stand squarely in the way:  the right to equal protection under the law, the right to privacy and the freedom to exercise one’s religion.  Let me explain. 

First, the old axiom, that the right to swing your fist ends where my nose begins, is analogous to this issue.  The assumed right to use a gender-restricted restroom ends where my actual right (based on DNA) begins.  I have a right to be protected against a threat to my person, to my reputation, to my sensibilities.  If I do not have this right, then there is no reason for laws against stalking, against slander, against libel, against sexual harassment, or against any other tort.  If a girl or a woman exercises due diligence by lawfully using a restroom according to her gender, she should not be subjected to any potential threat.  For a male (a person with male DNA) to enter that same restroom (or locker, shower, robing room), it is not unreasonable for a girl or woman to perceive it as a threat.  By its very nature, restroom use puts people in an extremely vulnerable position.  Also, age restrictions don’t apply.  Minors and adults both use the same facilities, making it that much more dangerous for a little girl to be in the same room as an adult male.  The law should protect her against such situations.

Second, the right to privacy stands as the very reason for public restrooms in the first place.  If not, then why not have toilets out on a street corner in full view of the public? (I know—hygiene.  That can be easily accounted for.  Besides, I’ve been in some restrooms that were more hygienically-challenged than a street corner!)  We have segregated public restroom on the basis of gender because it strikes the vast majority of people as the common sense thing to do.  To expose one’s body is considered a very private and sensitive act.  Privacy rights are heavily enforced in records keeping, especially medical records, legal records of minors, and many other areas as well.  Ironically, if the right to privacy does not exist, then the right to abortion should be vacated because that was the primary reason for Roe v. Wade. 

Last, the separation of the sexes and the conviction that physical exposure of the body has moral and religious implications must not be cavalierly dismissed.  The constitution is clear against the government prohibiting the free exercise of religion.  For the government to provide access to restrooms by anyone who simply feels like going into a certain facility is to uphold a non-existent law and trample on an existing law. 

I would like to make a prediction here.  As a result of this executive order, there will no longer be a barrier to public nudity, public breast-feeding, public urination, public sexual acts, or anything that was formerly called indecent exposure.  Anyone who has traveled in Europe sees nudity on billboards as a common sight.  That’s where this nation is headed.  The next step will be the dropping of restrictions against pornography and unrestrained expression of explicit content in magazines, books, TV programs, shows and movies.  The FTC prohibition against certain words or acts will end.  Anything and everything will be permitted and there will be few places one can go to avoid it all. 

There you have it.  Someone has said that the Statue of Liberty will be crying.  If she does, we won’t be able to see it.  She will be hiding her face.