While most Americans are not hostile to transgender people and oppose discrimination against their fellow Americans, the Republican party has made them a major target in their endless culture war. While sports have become one of the newest battlefields in this fight, there is still a focus on the bathroom battles. While the legal issues will be addressed by judges, there are also the moral issues.

Utilitarianism provides one approach to the moral issue of whether transgender people should be able to choose which bathroom to use. This involves weighing the harms of denying this choice against the harms of granting it. In a democracy, this approach seems to be a reasonable one, at least if it is believed that a democratic state should aim at the general good of the people (and that America is a democracy).

A utilitarian assessment leads to an obvious conclusion: bathroom choice should be granted. The two main arguments against bathroom choice fail in the face of facts and logic. One argument is that allowing bathroom choice would put people in danger. Since some states have already allowed bathroom choice, there is data about the danger presented by such choice. Currently, the evidence shows that there is no meaningful danger. As some wits enjoy pointing out, more Republican lawmakers have been arrested for bathroom misconduct than transgender people. As such, Republicans worried about bathroom safety should focus on policing their own party.

The other argument is the privacy argument, which contends that allowing people in bathrooms based on their gender identification would violate the privacy of other people. While the focus is on women’s bathrooms, men’s bathrooms have the greater potential for privacy violations because of urinals. Sometimes there are not even dividers between them and someone could simply look down and across at another person engaged in urination. As women’s bathrooms lack urinals and have stalls, there is more privacy. However, someone could obviously peep under a stall. In this sense, bathrooms already lack some degree of privacy. But this could be addressed by enclosing urinals in stalls and making stalls peep proof in ways that would still allow ventilation and ease of cleaning. But making bathrooms peep proof has not been a focus of Republican law makers, so they are probably thinking of privacy in a different way. The most reasonable interpretation is privacy from members of the other sex, this could be called “gender privacy.”

Those favoring transgender rights would point out that allowing people to use facilities based on gender identity would not result in boys seeing girls or vice versa. It would just be the usual girls seeing girls in the girls bathroom and boys seeing boys in the boy’s bathroom. Since the main worry is transgender girls in girl’s bathrooms, I will focus on that. However, the same discussion could be made for transgender boys.

The obvious reply to this would be to assert that gender identification is not a real thing: a person’s gender is set by biological sex. So, a transgender girl would, in fact, be a boy and hence should not be allowed in the girls’ locker room. This is presumably, based on the assumption that a transgender girl is still sexually attracted to girls because they are still a boy. There seem to be three possibilities here.

The first is that transgender girls are straight boys and are sexually attracted to girls (that is, they are just faking) and this grounds the claim that a transgender girl would violate the privacy of other girls. This would entail that lesbian girls also violate the privacy of other girls and since about 10% of the population is gay, then any bathroom with ten or more girls probably has some privacy violation occurring. As such, those concerned with privacy would presumably need to address this as well. The worry that lesbians might be violating privacy could be addressed by making stalls peep proof, but then no transgender bans would be needed since privacy would be protected.  While this could prove expensive, if Republicans are truly dedicated to bathroom privacy, they could provide funding for this.

The second is that transgender girls are not automatically sexually attracted to other girls and hence do not violate their privacy: they are girls like other girls. It could be objected that what matters is the genetic makeup or gender past of the person: someone who was once a biological male seeing a girl in the locker room violates her privacy. Arguing for this requires showing how this matters in terms of privacy, that being seen by girls is not a privacy violation but being seen by a transgender girl who is just going about their business is a privacy violation. That is, if the person looking does not care about what is being seen, then how is it a privacy violation?

The third is that transgender girls are just girls. In which case, there is no privacy violation since it is just girls seeing girls.

While those advancing these arguments might honestly believe them, it might be suspected that the motivation for opposing bathroom choice is a dislike of transgender people. This is the “transgender people are icky and bad” argument. This “argument” has no merit on the face of it, which is why it usually is not advanced as a reason by opponents of bathroom choice. But now back to the utilitarian argument.

One stock problem with utilitarian arguments is that they can be used to justify violating rights. This problem typically arises in when the benefits received by a numerical majority come at the expense of harms done to a numerical minority. However, it can also arise in cases where the greater benefits to a numerical minority outweigh the lesser harms to a numerical majority. In the case at hand, those opposed to bathroom choice could argue that even if bathroom choice benefits transgender people far more than it hurts people who oppose bathroom choice, the rights of anti-choice people are being violated. This then makes the matter a question of competing rights.

In the case of public bathroom facilities, such as student bathrooms at schools, members of the public have the right to use them since that is the nature of public goods. There are, however, reasonable limits placed on access. For example, the bathrooms in public schools, courthouses and government buildings are generally not open to anyone to wander off the street to use. So, while there is a right to public bathrooms, like all rights, it does have its limits. It can thus be assumed that transgender people have bathroom rights just as people who oppose bathroom choice do. What is in dispute is whether the right of transgender people to choose their bathroom trumps the right of anti-choice people to not be forced to use bathrooms with transgender people.

Disputes over competing rights are often settled by utilitarian considerations, but the utilitarian argument already favors bathroom choice. As such, another approach is needed, and a reasonable one is the consideration of which right has priority. This approach assumes that there is a hierarchy of rights, and that one right can take precedent over another. Fortunately, this is intuitively appealing. For example, while people have a right to free expression, the right to not be unjustly harmed trumps it. This is why libel and slander are not protected by this right.

So, the bathroom issue comes down to this: does the right of a transgender person to choose their bathroom have priority over the right of an anti-choice person to not encounter transgender people in the bathroom? My inclination is that the right of the transgender person has priority over the anti-choice person. To support this, I will use an analogy to race.

Not so long ago, there were separate bathrooms for black and white people. When the bathrooms were to be integrated, there were dire warnings that terrible things would occur if bathrooms were integrated. This is a stock conservative approach against expanding rights: if these people get this right, then terrible things will happen. This argument was made in defense of the anti-miscegenation laws, against desegregation of schools and the military, and against same-sex marriage. So far, the claims of harm have turned out to be wrong.

In the specific case of desegregation of bathrooms, these terrible things obviously did not take place. Whites also have argued that they had a right to not be in the same bathroom as blacks. However, the alleged white right to not be in a bathroom with blacks does not trump the right of blacks to use the public bathroom. Likewise, the right of transgender people to choose their bathroom trumps the right of anti-choice people to exclude them.

It can be objected that if this argument is taken to its logical conclusion, then gender mixing will occur in the bathrooms. For example, one common sight at races (such as marathons) is long lines leading to the women’s bathrooms and short lines for the men’s bathrooms. Women runners might start going into the men’s room (they already sometimes do). Then terrible things might happen. Specifically, I might need to wait longer to pee before races. This is a case where my selfishness must outweigh my moral principles: though I have no moral objection to gender mixing of bathrooms, my selfish bladder says that I cannot give up my right to a shorter line. If men want to go to the women’s bathroom, my bladder approves since that means less wait for it.