The disingenuous logic of transphobic bathroom laws: HB2 is not about preventing sexual assault
(TW: This article discusses sexual assault and transphobia, as you might guess from the title.)
The other day, I received a “campus alert” text from the university where I teach, which informed me of an “unidentified male” who had gone into a women’s bathroom in the school’s dorms and attempted to enter an occupied shower stall. Though I don’t have much information about the man or incident in question, the texts I received described him as a “Light Skinned Male Adult, 30-to-40 year’s [sic] old, dark hair, dark thin beard, and with possible dark clothing.” One thing you might notice about this description is that his clothing is described as dark, but it isn’t described as women’s. There is no indication that this man had presented himself as a woman in order to gain access to a women’s bathroom. This is a shocking fact, but only to people who have bought into the idea that trans women need to be kept out of women’s bathrooms in order to protect cis women from sexual assault. It turns out that men who are willing to sexually assault someone are also willing to break the rules about who gets to be in which bathroom.
Before dropping out of the race for the Republican nomination, Sen. Ted Cruz was asked on Meet the Press about his position on laws like North Carolina’s HB2, which is supposed to ensure that trans people use bathrooms that match the sex marker on their birth certificates. Cruz has had a number of things to say about this issue, including his belief that trans people should not be permitted to use any public bathrooms at all, which would make for an even more clearcut case of discrimination than the current law. But the part that interested me most was how Cruz, like many other pro-HB2 commentators, stressed that these laws are not about trans people, but about sexual predators who would pretend to be transgender in order to gain access to women’s bathrooms and other gender-segregated spaces. This is interesting if only because it shows a shift in conservative thinking — or at least public conservative discourse — away from the assumption that everyone sees trans people as sexually deviant and hence probably predators themselves.
But there is a rhetorical risk in pressing the idea that all North Carolina’s government is trying to do is keep cis men (as opposed to trans women) out of women’s bathrooms: it means the usefulness of the law should be measured by how well it accomplishes this goal.
There are a number of ways in which the logic Cruz voiced is faulty, many of which have been discussed in other spaces. As I already mentioned, it seems flatly ridiculous to suggest that anyone willing to assault people in a public bathroom would be deterred by an unenforceable law about who can be in which bathroom that carries no actual penalties. Considering how difficult it can be for actual trans people to use bathrooms without stares or harassment (or worse), it also seems like a man presenting himself as a trans woman would attract more, rather than less, scrutiny to his presence in that space (compared to, say, wearing coveralls to look like a janitor).
The notion that HB2 is motivated primarily by an interest in preventing sexual assault, of course, focuses exclusively on the vulnerabilities of non-trans women. Just as trans women are exposed to extreme levels of physical and sexual violence when they are incarcerated or held in immigration detention with men, the idea that trans women should use men’s rooms carries an unspoken assumption that the state need not be concerned with the safety of its trans populations. I had reservations about writing this article because I don’t want to feed into this idea that the threat cis women might hypothetically face from men who sneak into women’s rooms should outweigh the violence trans women would certainly face in men’s rooms.
But even if someone only cares about cis women’s safety, and even if they refuse to see the many other terrible problems with these transphobic laws, there is one other critically important way that the logic of laws like HB2 fails. Specifically, mandating that trans people use the bathroom that matches the sex marker on their birth certificate makes it easier — not harder — for men to access women’s restrooms.
The most widely circulated visual challenge to HB2 has probably been selfies taken by transgender men in women’s restrooms. While the law clearly aims to keep trans women out of women’s rooms, its wording bars many trans men from men’s rooms as well. A number of transgender men have given visibility to this implication in the form of selfies featuring themselves in women’s restrooms. Generally, the power of this juxtaposition comes from the fact that these men don’t “look trans” and hence would certainly be more jarring, or even scary, for women to encounter in a public bathroom than would a trans woman. But as long as we’re speculating about hypothetical bathroom situations, the point I want to stress is that the presence of trans men who “pass” in women’s bathrooms normalizes the presence of men in those spaces. In the scenario I constructed earlier, the hypothetical predator that Ted Cruz referenced would have to pretend to be trans in order to get into a women’s bathroom. Under HB2, the same predator no longer has to go to bizarre lengths to pretend to be a trans woman, because he can say he’s trans man instead. Considering it’s unclear how HB2 could even be enforced even under its intended circumstances, it’s hard to imagine how the trans status of any given man entering a bathroom could be determined.
HB2, not trans inclusive laws, provides cover for cis men who actually are dangerous to gain entry to women’s bathrooms.
This piece of logic strikes me as particularly important because I don’t think everyone is convinced by the argument that HB2’s major flaw is the presence of trans men who “pass” as cis men in women’s spaces. For instance, one implication of this line of thought is that trans people who don’t “pass” shouldn’t have the same access to public bathrooms appropriate for their gender identities. Mitch Kellaway pointed out in The Advocate that trans men who are read as cis men are likely to continue using men’s rooms rather than subject themselves to the potential spectacle and humiliation promised by a trip to the women’s room. He is also uncomfortable with promoting the idea that trans men are the male predators you should really be worried about in women’s spaces. From the other side of this horror show, I’ve seen a few tweets here and there from conservatives suggesting that they would be comfortable with trans men in women’s spaces so long as it’s clear that it’s a penis-free zone. There are a lot of things that could be unpacked about these statements, which are probably informed by the assumption that having a penis is both necessary and sufficient condition to make someone a potential rapist. But in the interest of whatever chance I have left at brevity, I’ll just point out that HB2 does nothing to decrease the number of men OR penises in women’s bathrooms.
I don’t expect my identification of this logical fallacy to be the undoing of HB2. Transphobic laws like these are driven by uninformed fears and deeply embedded anxieties about the nature of gender and sex. But I suppose that part of me must believe that we should use whatever tools we have at our disposal to push back against these forms of state-sanctioned oppression, if only to reveal that they have no logical basis and can only be explained by transphobic sentiments.
I think what we should be doing is using this conversation to put a spotlight on the serious issue that is obscured by these imaginings of sexually violent trans women, which is sexually violent men, whose assaults usually occur in places other than public bathrooms. HB2 is not about protecting people from sexual violence; if it was, North Carolina would be talking about ways of limiting men’s ability to perpetrate sexual assault like funding sexual violence prevention efforts, creating curriculum toward this end in public schools, improving the judiciary and legislative response to people who have been assaulted/abused, and so on. If the idea of protecting people from sexual assault is important enough to victimize trans women even when they are admittedly “not the problem,” why aren’t presidential hopefuls talking about the everyday violence of ordinary men like the one whose violation of a student’s privacy in a women’s room was the subject of that campus alert I mentioned? The answer is obvious: HB2 isn’t about protecting anyone. It’s about ignorant fear stoked by opportunistic public figures and the abuses of the legal system they’re willing to inflict in the process. It’s about criminalizing trans women’s bodies and legislating trans people out of public spaces. It’s about the fight ahead as oppressive forces strike out in response to the increasing amplitude of trans voices.