Anti-Unisex Bathroom Law in North Carolina Challenged in Lawsuit

Here's a radical idea to end bathroom panics: Don't let the government discriminate, and let businesses set their own policies.


I would gladly move to the Democratic People's Republic of Korea—North Korea—if that would guarantee that I'd never have to read another story about the existential threat to the American Way of Life posed by letting the estimated 0.03 percent of trans people pick whichever toilet they feel like using. Call me naive, but I assume such issues are beneath the concerns of the god-like Kim Jong-un, who like his father doesn't need to defecate or urinate.

The latest battleground in bathroom panic is North Carolina, where, as Scott Shackford noted, the city of Charlotte was on the verge of passing legislation that would have banned discrimination in housing and public accommodations (including restaurants, hotels, movie theaters, and the like) on the basis of "sexual identity and gender identification." So naturally the Republican-controlled legislature pushed through a law, happily signed by Gov. Pat McCrory, that bars all Tarheel municipalities from extending any anti-discrimination protections to lesbians, gays, bisexuals, and trans (LGBT) people.

Within 48 hours of passage, "The Public Facilities Privacy and Security Act," is already the target of a lawsuit with plaintiffs who range from a student, a staffer, and a professor at various branches of the University of North Carolina and claim the law traffics in "invidious discrimination." "Lawmakers made no attempt to cloak their actions in a veneer of neutrality, instead openly and virulently attacking transgender people, who were falsely portrayed as predatory and dangerous to others" reads part of the lawsuit.

But supporters of restrictive bathroom laws usually insist it's not because they don't dig the LGBT crowd, you understand. They're just really worried about gender-integrated toilets. As the press release issued by the governor's office put it, "Governor McCrory Takes Action to Ensure Privacy in Bathrooms and Locker Rooms." You might expect McCrory and his conservative brethren in the state legislature to defer to the wisdom of local elected officials. That's part of the Republican catehcism, isn't it? Devolve power to the most local and hence most representative level possible.

But not in this case, because we're talking about…basic bodily functions, which clearly and absolutely need to be legislated by the top men in Raleigh and not by the uncivilized rubes in Charlotte. "This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room," explained the governor, who then exhorted those same incompetents to get back to work. "The mayor and city council took action far out of its core responsibilities…It is now time for the city of Charlotte elected officials and state elected officials to get back to working on the issues most important to our citizens."

Yeah, whatevs. As if it's a "core responsibility" of any governent at any level to tell us where we can shit, shower, and shave. As a libertarian, I'm not fond of anti-discrimination legislation that moves beyond dictating terms to governments and publicly funded operations. So, for instance, I believe that as long as governments insist on being in the marriage-certifying business, they should issue licenses to any two people who request them. Publicly funded schools, hospitals, parks, and the like should also be held to strict non-discrimination standards even as I don't think the government should have the right to tell private businesses who they can or cannot serve, hire, or fire.

That's not because I long for the days of segregated lunch counters but because I fear a government powerful enough to tell us how to run our business will start to, I don't know, dictate how we can do our business. Indeed, it might even force us to buy health insurance in heavily regulated exchanges and forbid us from even offering unisex bathrooms (like the ones most of us have in our homes) in our businesses.
In fact, as my Reason colleague Elizabeth Nolan Brown wrote in 2014, widespread gender segregation of bathrooms isn't a fact of nature, as anyone who has traveled abroad or grew up in a single-family household could tell you. In the United States, it's actually been mandated in most places by an ever-increasing thicket of federal, state, and local laws that got their start in 19th-century Massachusetts. "In many places," wrote Brown, "businesses are legally prohibited from offering only gender-neutral restrooms.  A small restaurant, coffee shop, or bar with only two (separate, enclosed) toilets must designate one for women and one for men. New York City only made it permissible in 2012 for restaurants and coffee shops with just two water closets to make these unisex, and only then for places with a total occupancy of 30 or fewer. Washington, D.C., is one of the few places where it's actually illegal to designate single-occupancy restrooms as male- or female-use only."

The same drama that is playing out in North Carolina is being staged in various ways all across the country, especially as the trans community becomes more visible. Last year, a Florida state legislator would have forced business owners to make sure that patrons only used bathrooms for the sex designated on their birth certificates or else be open to lawsuits from offended customers. Last fall in Houston, voters flushed an anti-discrimination initiative aimed at adding LGBT residents to already protected categories after a steady of dose of bathroom scare stories. Don't you know, said the opponents, that this will encourage men to dress up as ladies, camp out in bathrooms, and then attack your daughters (as one political ad on the matter explicitly argued)? 

Strangely, despite a steady growth in unisex bathrooms—over 150 universities now provide gender-neutral showers and bathrooms in residence halls, and some major cities are relaxing their building codes–that bathroom-based crime wave never seems to appear, does it? When I was in college in the early-to-mid 1980s, the idea of shared bathrooms and showers was unthinkable. The floors in my dorms at Rutgers had boys and girls living on them, but the bathrooms and showers were also kept for one gender only. Lo and behold, when my older son started college four years ago, his residence hall at Ohio State had single-seat bathrooms and single-stall showers that any gender could use. Problem solved.

In fact, despite the panic in North Carolina, there are signs of sanity breaking out on the issue. A few weeks ago, South Dakota's Republican Gov. Dennis Daugaard vetoed a bill banning trans students from using locker rooms and bathrooms that didn't match their birth sex. His reason was the obverse of North Carolina's McCrory. A state-wide policy, he said, "does not address any pressing issue concerning the school districts of South Dakota. As policymakers in South Dakota, we often recite that the best government is the government closest to the people. Local school districts can, and have, made necessary restroom and locker room accommodations that serve the best interests of all students, regardless of biological sex or gender identity."

That sounds about right to me. What's the old libertarian saying? Get government out of the boardroom–and the bedroom! Sadly, we need to add and the bathroom these days, due to panicked conservatives whose understanding of government's "core responsibilities" too often leads them into places that are none of their business.

Will there be some difficult practical issues in figuring out how to live in a world beyond gender-segregated bathrooms and locker rooms? Sure, but given the overwhelming comfort that most Americans already show toward the trans population—a 2011 poll poll found that 86 percent of Republicans agreed that "transgender people deserve the same rights and protections as other Americans"!—that doesn't seem like much of an obstacle to making the world a slightly more welcoming place for people who really need to relieve themselves.

And if it proves an intractable issue—Ted Cruz is no shrinking violet on this matter—there's always North Korea, where the lack of food means you really don't use the bathroom that often (even if you're not nation's celestial being of a leader) and the lack of media freedom means the topic would never come up in the first place.