Policing Public Bathroom Use: The Enforcement Problem
Recently, Tennessee State Representative Richard Floyd proposed a law to prohibit trans people from using use public bathrooms and dressing rooms that don’t match the gender listed on their birth certificates. Other women, including of transsexual/operative history, have suggested — such as in the Montreal Gazette‘s Trans Talk blog, that women who have a right to be and feel safe in a sex-segregated facility – that use of public women’s restrooms can be — and perhaps should be — about what the shape of the front body part in an individual’s underwear.
And in the Montreal Gazette‘s blog article Ariel: A Different Point of View on the Washroom Issue, concedes the following in her argument that women have a right to feel safe in public women’s bathrooms:
Storyteller and writer Ivan Coyote has related several incidents of being screamed at by female washroom patrons even though she was born female-bodied and remains female-bodied.
Indeed, there have been cases of female bodied, non-transgender women who were perceived by some female bathroom patrons and/or bar bouncers to look too masculine that have brought public attention to how they were harassed when they went to use public women’s restrooms. Two examples of such are Khadijah Farmer and Tanya White — one turned away in a New York gay bar from using the women’s bathroom while the other one was removed from the Beverly Hills Hotel women’s bathroom. Both women were perceived by business staff to be men, and therefore told they weren’t welcome in women’s restrooms.
And then there is the issue of trans men. If one disallows trans women from using public women’s restrooms because of the shape of the shape of the front body part in an individual’s underwear or what the gender marker was on their original birth certificate, then one puts trans men in women’s restrooms. That would mean trans men who are taking testosterone, have facial hair, and wear clothing bought on the men’s side of the department store would often be legally required to use women’s restrooms.
And then there are those intersex people who are born with a primary sex characteristic that doesn’t conform to “standard” sex norms. Checking the body part that faces the front of an individual’s underwear is not going to properly police them into either the male or female public restroom. If a “standard” primary sex characteristic is required for using men’s or women’s public restrooms, then this would require those with a primary sex characteristic that doesn’t conform to “standard” sex norms to have surgery so that it does conform.
So what is the enforcement mechanism for policing public restrooms to keep men out of the public women’s restroom? And presumably, to be equal in application of any law and mechanism that would keep men out of the public women’s restroom, what is the mechanism for policing public restrooms to keep women out of the men’s public restroom? Is it checking for what is under the front of public bathroom user’s underwear?
And, who would be doing the underwear checks? Would we want it to have been a male or a female official underwear checker to be the one who would check what faced the front of Ivan Coyote’s, Khadijah Farmer’s or Tanya White’s underwear?
In fact, doesn’t that mean that any male or female who doesn’t conform the gender expression norms of our society’s sex and gender norms subject to being stopped prior to, or after using, either men’s or women’s public restrooms for underwear checks? Then we would be using police and other authority figures to decide for Americans what is gender appropriate clothing, hairstyle, facial features — basically, appropriate physical characteristics and appearance — for males and females in our society.
Underwear checks and dececions based solely on physical charateristics, for many reasons, would seem poor tools to police public restrooms.
If underwear checking isn’t the enforcement mechanism, than is the enforcement mechanism the gender marker on an individual’s ID card? Then in state’s where one is not allowed to change an individual’s gender marker — even after what is considered the appropriate medical treatment/surgery to change that marker per WPATH’s Standards Of Care — most transsexual people would consider this method a poor tool to police public restrooms in those states with such identification card requirements.
And, in many states, such as California, an individual can change their gender marker on their state ID’s without changing the body part that faces the front part of their panties or tightie-whities. With that in mind, quite a number of non-transsexual people would then consider relying on the gender marker on ID cards to be a poor tool to police public restrooms.
Birth certificates would seem to seem to be a poor tool to police public restrooms for pretty much the same reassons ID cards would seem to be a poor tool to police public restrooms.
Any mechanism used to determine who can and can’t use men’s and women’s public restrooms requires some level of policing that’s going to invade people’s privacy. So if one wants to embrace the “bathroom bill” meme that “men dressed as women”/”transvestites” are a danger to women in public women’s bathrooms — and therefore should be legislated out of public women’s restrooms — then one is also inherently is supporting intrusive government to police public restrooms for societal sex and gender norm conformity.
Policing public restrooms deprives people who just want to pee in peace the reasonable expectation to be left alone when they’re not engaging in an inherently unlawful activity. And worse, any mechanism used to police the separation of sexes in public restrooms subjects people who’s physical appearance or characteristics is perceived not to conform to societal sex and gender norms to gender norming, as well as to a governmentally endorsed invasions of privacy.