Why the smartest argument for the bathroom bill isn't smart at all

Opinion piece by SMU Philosophy Professor Jean Kazes

By Jean Kazez

One of my jobs as an ethics professor is to figure out what the best case might be on each side of any contentious issue. And so I find myself earnestly trying to understand what drives the proponents of Senate Bill 3, the bathroom bill. What's the very smartest thing they can say in support of it?

Take the proponents' explicit motivation, to stop would-be sexual predators from taking advantage of transgender women being in the women's room. The idea is that cis (non-trans) male opportunists could dress like women and get away with their incursions because trans women can be seen in women's rooms.

This can't be the smartest argument for SB 3, because it isn't smart at all. Imagine that trans men started using the women's room, as SB 3 requires. There would be people in the women's room who look just like men — sporting beards, even. Now cis male predators wouldn't even have to put on a dress before making their incursions into women's rooms.

No, if they've given it any thought, proponents of the bathroom bill can't really be trying to keep male predators from invading women's rooms. What they might really be thinking is that human beings fall into two natural kinds, with no possibility of movement from one box to the other. Bathrooms are ground zero for the separation.

But this, too, fails to impress. Parents already bring children of the other sex into the bathroom. Single occupancy bathrooms get occupied, alternately, by men and women. And besides, if we let the two kinds into the same airplanes, supermarkets, and churches, what's the problem with letting them into the same bathrooms? Why is the bathroom ground zero?

If there's a smart case for SB 3, there needs to be some sort of harm done by letting trans folk use the same bathrooms as cis folk. I suspect supporters of the bill think, deep down, that it's harmful for a cis woman or girl to suspect there may be a trans woman in the next stall because, well, because that person may be making use of a penis. 

I wouldn't want to dismiss anybody's feelings, but we do need to consider all the feelings. Imagine, if SB 3 passes and people comply with it, the feeling of being a trans woman walking into a men's bathroom, being stared at and feeling threatened with verbal or physical abuse. Or being a trans man walking into a women's room, and being told you're in the wrong place. Or not drinking, in the Texas heat, because you want to avoid having to use the bathroom. Can our legislators really be asking us to be more concerned about the mere thought that there's a penis in use in the next stall over? 

Finally, you might support SB 3, out of compassion for pre-trans kids: you (allegedly) want to make life harder for trans people to discourage the next generation from jumping from one gender box into another. This is a preposterous defense on many levels, but I'll just mention the dangerous slippery slope this would put us on. What measures will gender conservatives dream up next, to keep everyone in their proper box?

Try as I may, I can find nothing smart to say on behalf of SB 3. I suspect it simply functions to allow conservatives to express outrage about a phenomenon that they don't understand and can't (yet) get used to. It serves no coherent purpose and deserves to fail.

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