Donald Trump, Transgender Kids, and the Separation of Bathroom and State

Because I’m worried about the future of the nation, I want a national discussion and debate about big issues such as the entitlement crisis and our insane tax code.

No such luck. The crowd in Washington and the media have been focusing on sideshow topics such as which side has the most fake news, the purported sloppiness of executive orders, and the Trump-Putin “bromance.”

And we now have a culture-war fight in DC thanks to Trump’s new policy on transgender bathroom usage.

The Justice and Education departments said Wednesday that public schools no longer need to abide by the Obama-era directive instructing them to allow transgender students to use bathrooms and locker rooms of their chosen gender. …The agencies said they withdrew the guidance to “in order to further and more completely consider the legal issues involved.” Anti-bullying safeguards for students will not be affected by the change, according to the letter. …There won’t be any immediate impact on schools, because the Obama guidance had been temporarily blocked since August by a federal judge in Texas, one of 13 states that sued over the directive.

Though, to be fair, Trump didn’t start this culture war. He’s simply responding to a battle that Obama triggered.

Moreover, even though I prefer that we focus attention of big-picture fiscal and economic issues, I’m not asserting that this issue should be swept under the rug.

That being said, I think the issue would largely disappear if we simply recognized boundaries. Not everything should be decided in Washington. Yes, it’s the federal government’s job to guarantee and protect universally applicable constitutional rights, but some decisions belong at the state and local level. And most decisions should take place in the private sector and civil society.

Here’s some of what I wrote in late 2015.

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.

Let’s look at some more recent sensible commentary on this topic.

Roy Cordato wrote about the controversy in his state of North Carolina.

…lost in all the rhetoric surrounding this issue is the truth about both the original Charlotte law and the state’s response to it. …the Charlotte, North Carolina, city council passed an “antidiscrimination” law… The centerpiece of this law was a provision that prohibits businesses providing bathrooms, locker rooms, and showers from segregating usage of those facilities by gender, biologically defined. Biological males or females must be allowed to use the facilities of the opposite sex if they claim that that is the sex they identify with psychologically. …This ordinance was an assault on the rights of private property owners and economic freedom, regardless of one’s religious beliefs. …In a free society based on property rights and free markets, as all free societies must be, a privately owned business would have the right to decide whether or not it wants separate bathrooms strictly for men and women biologically defined, bathrooms for men and women subjectively or psychologically defined, completely gender neutral bathrooms with no labels on the doors, or no bathrooms at all.

And Roy says that the state law (which overturned the Charlotte ordinance) was reasonable in that regard.

The law in North Carolina that so many progressives are up in arms about does not prohibit businesses from having bathrooms, locker rooms, showers, etc., that allow use by people of all genders defined biologically, psychologically, or whatever. …the state of North Carolina codified a basic libertarian principle: the separation of bathroom and state.

Tim Carney of the Washington Examiner has a similar perspective.

Government needs to get out of culture war issues as much as possible, the question of transgendered people in bathrooms included. …In North Carolina, Charlotte’s City Council made the first mistake. …the city passed a non-discrimination ordinance…that…basically legislated bathroom admission. …Charlotte passed this law, exposing private business owners to lawsuits and legal punishments. …The ordinance also stirred up fears of predators — men getting into a ladies’ room thanks to this law, and then assaulting or leering at vulnerable women. Nobody showed that this was a real threat, but the same mindset behind the Charlotte law — we need a law to ban a possible bad thing — drove the state legislature to pass HB 2. HB 2 blocked Charlotte and other cities from implementing their antidiscrimination laws. …both the liberal legislation and the conservative reaction were out of place. Charlotte shouldn’t have stuck itself into private restrooms, and the state shouldn’t have stuck itself into the city’s sticking itself into restrooms.

By the way, Tim’s column also makes the key point that people should be decent human beings. A bit of civilized consideration and politeness goes a long way when dealing with potentially uncomfortable situations.

Writing for Reason, Scott Shackford opines on the topic, beginning with an appropriate defense of transgender people.

Transgender citizens have the same right as everybody else to live their lives as they please without unnecessary government interference. …As a legal and ethical matter, …it generally shouldn’t matter why somebody identifies as transgender. It’s their right. In the event that somebody decides to pose as transgender in order to engage in some sort of fraud or criminal behavior, there are already laws to punish such actions. …so it would be appropriate that in any situation where the government treats a transgender person on the basis of his or her identity it respects their form of gender expression. That means the government should allow for any official documentation—such as a driver’s license—that requires the listing of a person’s sex to match the identity by which a person lives, as much as it’s feasibly possible. …Transgender citizens are seeing some big inroads both culturally and legally, and we should all see these generally as positive developments. …Transgender citizens have the right to demand the government treat them fairly and with dignity.

But Scott correctly observes that the government should not have the power to use coercion to mandate specific choices by private individuals or private businesses.

In the private sector, it’s all a matter of cultural negotiation and voluntary agreements. The law should not be used to mandate private recognition of transgender needs, whether it’s requiring insurance companies cover gender reassignment surgeries or requiring private businesses to accommodate their bathroom choices. The reverse is also true: It would be inappropriate for the government to forbid insurance coverage or to require private businesses to police their own bathrooms to keep transgender folks out.

Last but not least, my colleague Neal McCluskey explains that federalism is part of the solution.

Much of this debate has been framed as conservatives versus liberals, or traditionalists versus social change. But the root problem is not differing views. It is government — especially federal — imposition. …Single-sex bathrooms and locker rooms have long been the norm, and privacy about our bodies — especially from the opposite sex — has long been coveted. …Of course, transgendered students should — must — be treated equally by public institutions, and their desire to use the facilities in which they feel comfortable is utterly understandable. By fair reckoning, we do not have a competition between good and evil, but what should be equally protected values and rights. How do we resolve this? …not with a federal mandate. …So how, in public schools, do we treat people equally who have mutually exclusive values and desires? We cannot. Open the bathrooms to all, and those who want single-sex facilities lose. Keep them closed, and transgender students lose. The immediate ramification of this is that decisions should be made at state, and preferably local, levels. At least let differing communities have their own rules.

But the real answer, Neal explains, is school choice.

…the long-term — and only true — solution is school choice. Attach money to students, give educators freedom to establish schools with their own rules and values, and let like-minded people freely associate. Impose on no one.  …We live in a pluralist society, and for that we should be eternally grateful. To keep that, and also be a free and equal society, people of different genders, values, etc., must be allowed to live as they see fit as long as they do not impose themselves on others. That is impossible if government imposes uniformity on all.

But I’ll admit that these libertarian principles don’t solve every problem. States will need to have some sort of policy. Not because of private businesses, which should get to choose their own policies. And not because of schools, which will be privately operated in my libertarian fantasy world and therefore also able to set their own policies.

But how should states handle bathrooms in public buildings? Even if there are less of them in a libertarian society, the issue will exist. And what about prisons in a libertarian world?

I don’t pretend to know exactly how these issues should be resolved. Conservatives argue that you should be defined by the gender on your birth certificate and leftists say you should be to choose your identify.

My gut instinct is to cut the baby in half (I’m such a moderate). Maybe the rule for prisons is not how you identify or what’s on your birth certificate, but what sort of…um…equipment you have. If you were born a man but had surgery, which is your right so long as you’re not asking me to pay for it, then you’re eligible for a women’s prison. Likewise, if you were born a woman and surgery gave you male genitalia (I confess I don’t know if that’s even possible), then you get assigned to a men’s prison.

Government bathrooms are an easier problem. From a practical perspective, I’m guessing the net result of this fight – at least for schools and public buildings – will be a shift to single-use bathrooms. In other words, multi-person facilities for men and women will be replaced by a bunch of private bathrooms.

This will be bad news for taxpayers, because it is more expensive to build and operate such bathrooms.

And it will be bad news for women because that means they will be forced to use bathrooms that are less pleasant because men…um…tend to be less fastidious about…um…personal habits such as lifting toilet seats before…well…you know.

Men only have to deal with the messes made by other men when we have to sit down in a bathroom. And even then, the problem is minimized since other men generally will use urinals when they…um…don’t need to sit down.

But if we have a world of one-person-at-a-time bathrooms, women’s lives will be less pleasant.