The American bathroom wars

This story appears in the Election 2016 feature series. View the full series.

by Phyllis Zagano

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Ever since the United States enacted, then removed, a "Don't Ask, Don't Tell" policy for military service, legal protections for people of differing sexual orientations have become political footballs.

Whatever happened to "don't care"?

A 1994 U.S. Department of Defense directive essentially ordered military commanders to mind their own business regarding homosexual activity. In 2011, President Obama signed a law effectively repealing "Don't Ask, Don't Tell," thereby allowing openly homosexual individuals to serve in the armed forces.

Sexual orientation was once nobody's business. Now it is everybody's business.

Take the State of North Carolina, population ten million. Charlotte is its largest city. Several weeks ago, the Charlotte City Council passed a local ordinance effectively opening the public restrooms of their choice to the transgender folks among its 900,000 or so residents and others.

No big deal, you say. "Don't care" is in effect nationwide in every walk of life.

Yes. Maybe. But.

The North Carolina state legislature got involved. Shortly before the Charlotte law's April 1 trigger date, the state legislature passed an overriding state law. Now everybody's mad at everybody else and no one is talking through the issues.

Let's look at the new North Carolina bathroom ordinance, the section titled "Single-sex Multiple Occupancy Bathroom and Changing Facilities." The ordinance states that in publicly-controlled locations you must attend to your needs in rest facilities according to the gender stated on your birth certificate. Aside from the fact that too many folks are hysterical over what will happen if Caitlyn Jenner gets stuck in a North Carolina airport, there are other things to consider. In fact, transgender people who have taken the necessary legal steps to change their birth certificates can, so to speak, go where they please.

First, the ordinance covers public schools. That would be kindergarten through grade twelve, and beyond in the state university system. OK, the college kids, probably even the high school kids can figure it out. But what happens when fifth-grade Lucy turns up as sixth-grade Luke? What will he do? Will the boys beat him up if he goes into the boys' room? Will the girls squeal in horror if he goes into the girls' room?

Second, the ordinance covers public buildings only, such as courthouses, libraries, and municipal offices. Do you think a rapist would put on mascara and stockings in order to sneak into the ladies room? Will North Carolinians need to carry their birth certificates in order to get into toilets that probably require key access anyway? Are there not enough guards already in public buildings before adding the bathroom police?

Third, when did the American custom of separate facilities become discriminatory? Can that custom be continued without causing an international uproar? Should it? Many places in Europe are rather nonchalant about who goes where, and that trend has spread to parts of the New World. Have the Puritans newly come ashore in North Carolina?

The question is about fairness to both sides of the issue. The answer, if there is one, is not to force grade-schoolers to surgically choose their genders, perhaps prematurely. Nor is it to establish a written proof-of-gender requirement before granting access to address nature's needs. But, neither is it to deny privacy to all people, no matter their gender identity or sexual orientation.

There are many considerations, and to say that Charlotte is right and the governor of North Carolina is wrong blurs both sides of the issue. For now, the law is the law in North Carolina, even though a new ruling by the U.S. Court of Appeals for the Fourth Circuit on a different case seems to overrule it.

No matter what the courts determine, the arguments will continue. Meanwhile, if you happen to be in the sixth grade, you surely want to avoid either being attacked or hopelessly embarrassed by your classmates.

In the short term, the answer might be twofold: build stalls around the urinals and create more single-occupancy facilities.

In the long run, however, the answer might simply be education based on respect for all human persons.

[Phyllis Zagano is senior research associate-in-residence at Hofstra University in Hempstead, N.Y. She will speak May 6, 2016, at the University of St. Michael's College, Toronto and Sept. 24, 2016, at The Catholic University of America, Washington, D.C. Her books include Women Deacons: Past, Present, Future and Women Deacons? Essays with Answers.]

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