Can we avoid the 'bathroom wars'?

by Michael Sean Winters

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In the movie "The Help," one of the first points of real conflict comes when Miss Hilly Holbrook, the racist villainess played brilliantly by Bryce Dallas Howard, confronts her maid Minny Jackson, played with equal brilliance by Octavia Spencer. Minny, during a fierce thunderstorm, has used the bathroom in the house, which is reserved for whites, instead of the outhouse. Miss Hilly goes on to draft legislation that would require white families to build an extra bathroom for their black help. She is haunted by the idea that white folk could get special germs she thinks are unique to the black race from shared bathroom usage.

What is it about bathrooms? Throughout the Jim Crow South, there were separate restrooms for blacks and whites. When I bring my dad, my uncle and my niece to Puerto Rico every winter, my niece claims the one bedroom with the private bathroom and the guys share the other one. Three hundred years ago, it was a mark of honor to be able to accompany the monarch as he took his toilette. Now, privacy seems most significant, and therefore the most easily endangered, when we discuss bathrooms.

Still, even I have been taken aback by the current "bathroom wars," fought over the issue of whether or not transgender persons should use the bathroom that corresponds to their gender at the time of their birth or to the gender by which they now identify themselves.

I am surprised, first, that this issue has seemingly become the next frontier in the civilizational struggle for equality. I understand that the issue is of great concern to the sliver of the population that is transgender. A family I know has a child that just changed his gender, and the process, and the result of the process, has certainly not been without anxiety and stress. The fact that the legal struggle seems focused on schools, when all kids are going through puberty, seems especially designed to throw gasoline on the fire. My sense is that this issue has less to do with the people it ostensibly concerns and more with those who are professional culture warriors on both the left and the right.

It baffles me that the Obama White House has latched on to this issue as a key part of its legacy. The fact that his administration has done so does not evidence the breadth of concern for other human beings and their travails. No, it evidences the degree to which some on the left, especially those with power, glom on to whatever issue seems trendy and cool at the moment. As Thomas Frank points out in his new book Listen Liberals, the "creative classes" that dominate the liberal establishment are far more animated by the need to get someone an abortion than they are to get people a job. Furthermore, how is this a federal issue?

It also baffles me that conservative critics of any accommodations being made for transgender people use such false and inflammatory language to describe the situation, warning darkly that the Obama Administration rules would allow men to prey on your daughters in the bathroom. (What is to prevent predators from doing that now?) A transgender person who now identifies as female and desires to use the women's bathroom is probably going to cause less of a stir in the ladies' room than in the men's room. Think of Caitlyn Jenner. The way she looks now, I can't imagine feeling comfortable if she walked into the men's room.

Surely this is an issue where common sense and a sense of generosity and compassion should be allowed to chart the way forward. I might think Caitlyn Jenner will be less conspicuous in a women's room, but if a transgender person who now identifies as male wants to use the men's showers, where there is likely no dividing curtains or walls, it is not difficult to see how that could be problematic and should not be mandated by law. The law, and common decency, should require a school to make an accommodation, such as allowing the student to use the restroom in the teachers' room. Just as school facilities had to make changes after the enactment of the Americans with Disabilities Act, I would not object if the Obama Administration, or better individual states, required schools to have a private shower in the locker rooms for those who are dealing with gender identification issues. They may not have to build that right away, but whenever they next undertake construction. In short, there is no reason not to take the needs of transgender students in stride.

But, why, oh why, has this become such a huge issue? It is largely because so many interest groups are always looking for a fight. It is because the cultural left now incites and stokes the culture wars, convinced that with time they will win, little recognizing that they are alienating millions of their fellow citizens in the process. Hint: Sen. Bernie Sanders' call for a political revolution and Mr. Donald Trump's rendition of Il Duce are not so popular because people are happy with their life situation. In the 1950s and 1960s, when the civil rights movement was at its height, most Americans were not worried about their economic status. Now, many people are very anxious about their economic circumstances and the party of FDR and LBJ is unconcerned about the Rustbelt towns that have seen jobs flee, and communities left to die slowly, but Lord knows we have to light up the White House in rainbow colors when the Supreme Court legalizes gay marriage. This is the measure of how divorced governance is from electioneering for Obama and his team and how little they understand what is stoking the Sanders and Trump phenomena this year.

Mark Silk had an interesting post on this generational aspect of the issue just last week, noting that his children are now engaged in economic and environmental issues, not culture wars ones. Michael Lind looked at this same set of issues in an essay published yesterday at Politico, arguing that we are at the conclusion of a party realignment. Politico also had a great piece looking at the history of bathroom wars in politics and culture. Cathleen Kaveny made the point in her book Prophecy Without Contempt that whereas in the 17th century, the premise of the covenant that undergirded our polity was that God would reward morally upright behavior with economic and military success, now we reverse the two and political parties are rewarded primarily based on their ability to deliver economic and military success and, once in power, get to enact their version of virtue in the culture war fights.

To the issue at hand, I profoundly hope the Catholic bishops will not take the bait and will sit this one out. Even if this fight was begun by the proponents of gender ideology and even if you accept the common sense understanding that gender ideology is goofy, it is precisely that goofiness that should help us resist paying it any heed and letting it collapse of its own irrelevance to the lives of most people. And, Lord help us if we bring religious liberty into this fight. That is a surefire way to further degrade the currency of our First Amendment rights.

Populism often comes in brutish form, as we see in the ascendancy of Donald Trump and his coarse nativism and, in a different, less brutish but equally tone deaf way, with Bernie Sanders and his inability to grasp why the American people have grown suspicious of big government. Neither candidacy would have gained any traction had the liberal elites who populate the Obama administration been less aloof, less committed to seeing the president as the philosopher- king whose job is to enlighten the poor unwashed masses, more in touch with real people in the heartland and less concerned about the latest gender or ethnic cause. President Obama, three years ago, kicked up a storm by suggesting the Washington Redskins should change their name. Liberal activists expressed their shock and assigned shame. But a poll last week of Native Americans indicated by a margin of 90 percent to 9 percent, that they did not find the name offensive.

I suspect most families of transgender children are not looking to make a point. I suspect they are not enthralled by a "gender ideology" that may have currency in certain academic circles but it rightly recognized as hogwash by everyone else. I suspect most parents merely want their child to navigate a truly challenging road. Instead of laws from Washington, or hostility from pastors, the appropriate response to the bathroom issue is to find a practical, common sense solution that keeps the best interest of the child first and foremost. Let's not let the culture warriors and the lawyers drag the nation into another divisive fight. Let's not let the drag transgender children into that fight either.  

[Michael Sean Winters is a Visiting Fellow at Catholic University's Institute for Policy Research and Catholic Studies.]

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