“Bathroom bill” is the popular term for legislative efforts to set access to public bathrooms in terms of gender identity. These bills typically define who can and cannot have access to these facilities based on how the bill defines the sex of an individual. Common examples include defining sex by assigned sex at birth, sex listed on the person’s birth certificate, or sex based on gender identity. Various states have passed or are considering bathroom bills and this matter has become part of the ongoing culture war with the latest battle being fought around congressional offices with flags and signs.
People tend to take a stance on bathroom bills based on how they feel about the matter (or what they think other people feel) rather than based on a theory of law. This is usually because most people, even national politicians, have no theory of law. While my focus in this essay is on bathroom bills, I am using this context to develop my theory of law in more detail—I want to have a principled and consistent method of assessing laws and good faith argumentation involves making this methodology clear.
Good faith also requires me to note that I am operating within a liberal Locke-Mill framework of political philosophy. Put in simple terms, I accept that people have rights, that the purpose of government is the good of the people, and that rights can only be infringed upon based on the principle of harm. I also favor small government: the laws and the state’s use of coercive force should be kept at a minimum. I have other assumptions but laying out my entire political philosophy would be a multi-book project. Good faith also requires that I make it clear that I generally oppose bathroom bills—my reasons will be advanced in this essay.
My first consideration in assessing a (potential) law is determining whether the subject is fit one for law. That is, the issue is whether the matter falls under the legitimate use of the power of the state. This is a controversial matter and serves a large role in political divisions. Fortunately, the matter can be narrowed down to specific concerns. In the case of the bathroom bill, the issue is whether controlling who can access bathrooms is a legitimate use of the coercive power of the state. In the context of laws that restrict liberty and rights, I generally follow Mill’s approach: liberty can only be justly restricted to prevent harm to another. On this principle, proponents of a bathroom bill would need to identify the harms that the bill is intended to prevent: if there are no harms, then there would seem to be no justification for restricting liberty. But even if a law is supposed to prevent harms, this does not settle the issue of whether it should be law.
A second consideration is the issue of whether the significance and nature of the alleged harm warrants expending public resources to pass and enforce a law. Harms vary in significance and even significant harms might not be the right sort of harms that justify the use of the coercive power of the state. Consider, if you will, some harms that can occur in a bathroom.
Like many other men, I feel uncomfortable when other men try to engage me in conversation while I am urinating. I am also a bit offended when people try to make eye contact during these conversations. While I am experiencing some harm (discomfort and feeling offended) these harms are not significant enough to warrant a law against them. They are also not the right sort of harms: the state does not seem obliged to protect us from discomfort or offense. But a person could escalate matters in the bathroom: if the chatty urinator started making threats of violence or tried to touch me, then the harms become both significant enough to and the right sort to warrant state intervention in these matters. That is, laws against threatening people with violence and assault seem to fall within the state’s legitimate use of coercive force to protect people.
While those advocating bathroom bills might feel uncomfortable around or offended by the people whose bathroom access they wish to control, they generally understand that these reasons do not warrant passing a law. As such, the bills are typically presented as intending to keep women and girls safe in the bathroom. Some proponents of these bills do admit that transgender people are rarely sexual predators. Instead, they express worry that non-transgender sexual predators will exploit laws allowing transgender access to bathrooms to attack women and girls. This does allege harms that would be both significant and the right sort. But is the allegation true?
Several states and large cities have allowed transgender people to access bathrooms based on their identity for years, thus providing a wealth of empirical data on this matter. The evidence is that this access is not exploited by predators. That is, allowing trans people access to bathrooms of their choice does not decrease the safety of women and girls in bathrooms. If it did, there would be evidence. This is not to deny that a sexual predator could dress up as a woman to get into a bathroom, just that it does not seem to be something that occurs with any statistical significance. A sexual predator could also disguise themselves as a trash can to launch an ambush in a bathroom, but we do not need a law to address this—it is not something that happens enough to warrant creating a law and mandating trash can inspections.
Somewhat ironically, bathroom bills require that transgender men use women’s bathrooms. As such, a sexual predator keen on exploiting the law could simply claim to be a transgender male and freely enter bathrooms. No need to wear a dress. As such, the fear argument is self-defeating: if a law is needed to keep transgender people out of bathrooms because male sexual predators will put on dresses to pretend to be transwomen, then the law would not work because sexual predators would simply claim to be transmen and have easy access to the bathrooms because the law defines them as women. This could be addressed by employing bathroom police and requiring people to present birth certificates before accessing bathrooms. But this would require a disproportionate expenditure of resources and impose inconveniences not warranted by the alleged harm. In response, one could contend that something must be done to address the possibility of harm: predators must be prevented from attacking women and girls in bathrooms.
My third consideration is the issue of whether the harm is adequately addressed by existing laws or factors other than laws. If the harm is already addressed adequately, there is no need for a new law. Going back to my chatty urinator discussion, we do not need a law banning chatty people from bathrooms because someone might make verbal threats in the bathroom. We also do not need a law banning people who make eye contact in bathrooms because someone might touch someone else in the bathroom. The existing laws already handle this: making threats is illegal and assault is illegal. Likewise, while knowing a trans person is in the bathroom with them might make a person uncomfortable or feel offended, we do not need a law banning trans people because someone might assault or rape someone in a bathroom. The existing laws already handle this: assault and rape are illegal and allowing trans people to use bathrooms as they wish does not change that. As such, there is no need for bathroom bills—on their own grounds of justification they are unjustified.