Libertarian Solution to Transgender Bathrooms and Locker Rooms

One of the great things about being a libertarian is that you have no desire for government sanctions against peaceful people who are different than you are, and that should be a very popular stance.

You can be a libertarian who is also a serious fundamentalist, yet you have no desire to use the coercive power of government to oppress or harass people who are (in your view) pervasive sinners. For instance, you may think gay sex is sinful sodomy, but you don’t want it to be illegal.

Likewise, you can be a libertarian with a very libertine lifestyle, yet you have no desire to use the coercive power of government to oppress and harass religious people. It’s wrong (in your view) to not cater a gay wedding, but you don’t want the government to bully bakers and florists.

In other words, very different people can choose to be libertarian, yet we’re all united is support of the principle that politicians shouldn’t pester people so long as those folks aren’t trying to violate the life, liberty, or property of others.

And when you’re motivated by these peaceful principles, which imply a very small public sector and a very big private sector and civil society, it’s amazing how many controversies have easy solutions.

Consider, for example, the legal fights about transgendered students.

Writing for Reason, Steve Chapman of the Chicago Tribune highlights a controversy in Illinois.

…in Palatine, Illinois,…the public school district had to decide how to handle a transgender student who was born male but lives as a female. …The school district has largely accepted her identification, letting her play on a girls’ sports team and use the girls’ restrooms. But it draws the line at the locker room, where it says other students must be protected. Its solution is to provide a private space this student must use to change clothes.

This seems like a reasonable compromise, but some bureaucrats in Washington aren’t happy.

This remedy doesn’t satisfy the Office for Civil Rights of the Department of Education, which this week decided that restricting locker room access to “Student A” is a violation of Title IX, which forbids discrimination on the basis of sex in education programs.

But Steve says the bureaucrats are actually being reasonable.

The feds’ solution is a sensible compromise. It suggests that the district provide curtained changing areas, available to all, without forcing anyone to use them.

And this issue isn’t a rare as one might think. Here are some passages from a CNN report, which also agrees that the issue boils down to the provision of privacy curtains in locker rooms.

In 2013, …California became the first state to allow transgender students to choose which bathrooms and locker rooms to use. …a negotiated solution by putting up privacy curtains in the girls’ locker room. Similar arrangements have kept schools from running afoul of anti-discrimination violations. At Township High School District 211, however, the line between accommodation and discrimination came down to this: whether the student would be able to choose to use the privacy curtains, or whether the school could force her to do so.

And here are some excerpts from a separate CNN story from Missouri.

The 17-year-old Hillsboro High School senior wears skirts, makeup and a long wig styled with bobby pins. She even started using the girls’ locker room to change for gym class, despite the school’s offer of a single-occupancy restroom. …it became clear she was not welcome in the locker room. Because Perry has male anatomy, many students simply see her as a boy in a wig changing in the girls’ locker room — and that makes them uncomfortable. …the guidance is pretty clear as far as the federal government and LGBT advocacy groups are concerned: Transgender students should be allowed to use the restroom and changing room that accords with their gender identity.

And if every student has a private changing area, which is what Steve Chapman suggested, there shouldn’t be a problem. Heck, you wouldn’t even need a boy’s locker room and girl’s locker room.

But Steve wasn’t being sufficiently libertarian because there’s an even better solution. Why not simply engage in real education reform, give all families vouchers, and then let them choose schools on the basis of many different factors (academics, convenience, cultural programs), one of which might happen to be how they deal with transgendered students.

Some schools presumably will be very accommodating while others may be rather unwelcoming, and parents can take that information into account when deciding where to send their kids.

Here’s another controversy that could be easily solved with the application of libertarian principles. Voters in Houston recently rejected a law that would have mandated (among many other things) that people could choose bathrooms based on their preferred gender.

Here’s some of what was reported by the New York Times.

…voters easily repealed an anti-discrimination ordinance that had attracted attention from the White House, sports figures and Hollywood celebrities. The City Council passed the measure in May, but it was in limbo after opponents succeeded,following a lengthy court fight, in putting the matter to a referendum. The measure failed by a vote of 61 percent to 39 percent. Supporters said the ordinance was similar to those approved in 200 other cities and prohibited bias in housing, employment, city contracting and business services for 15 protected classes, including race, age, sexual orientation and gender identity. …In Houston, the ordinance’s proponents…accused opponents of using fearmongering against gay people, and far-fetched talk of bathroom attacks, to generate support for a repeal. The ordinance, they noted, says nothing specifically about whether men can use women’s restrooms. …Opponents of the measure…said the ordinance was so vague that it would make anyone who tried to keep any man from entering a women’s bathroom the subject of a city investigation and fine.

Scott Shackford of Reason explains that opponents used emotional arguments against the referendum instead of making a principled libertarian case against government intervention.

The Houston Equal Rights Ordinance (HERO)…ordinance also includes sexual orientation, genetic information, and gender identity. …HERO…is more broad than federal laws, which don’t include sexual orientation and gender identity and have a much more restrictive view of what counts as a public accommodation. …Opponents of HERO warn that if the referendum passes, men will claim to be women to hide in bathrooms and assault your little girls. …There’s no argument suggesting that individual and business freedom of association is being hampered by the law. There’s no argument that we have so many more ways to culturally apply pressure to fight bigoted behavior in the private marketplace that Houston doesn’t need additional laws.

And Shackford makes the key libertarian argument that private companies and private individuals shouldn’t be coerced by the government.

…it’s a shame the ordinance lumps in both government and private behavior. Government shouldn’t discriminate in employment and accommodations for any of these categories, and if that’s all the law did, it would be great. But for private businesses and for private restrooms, leave it to citizens to work out the issues on their own.

In other words, the entire controversy disappears (at least in the private sector) because people would have freedom of association. They could decide to have unisex bathrooms. They could decide to have traditional bathrooms. Or they could be like Facebook and have dozens of bathroom options based on categories I don’t even understand.

P.S. If you want to figure out whether you’re libertarian, there are several tests, ranging from very simple exercises (here and here), to ones that will take 5-10 minutes, or ones that require answers to dozens of questions.

P.P.S. Before answering any of those tests, you may want to read this.