While homophobia can still be exploited for political advantage, it is not as effective as it used to be. In response to its diminished political value, the American right embraced transphobia. Before this, most Americans gave little thought to such matters as transpeople competing in sports and bathroom bills. Now that Trump has reclaimed the Whitehouse, it is certain that transphobia will continue to be pushed onto the American people and exploited for political advantage. This will give rise to various moral questions, centered around sports and bathrooms. The right seems extremely interested in bathrooms and who is using them. While one could simply assume that their views are, at best, based on ill-founded but sincere fears, there is the moral question of whether transpeople should be allowed to choose their bathrooms.

One way to approach this moral issue is to consider the matter in utilitarian terms. This requires weighing the likely harms and benefits of allowing or denying this choice. If our overall goal in politics is to serve the good of the people, this is a reasonable approach. It also does not beg any questions as it requires an honest evaluation of the harms and benefits to everyone.

A utilitarian assessment would favor bathroom choice. This is because the two most used arguments against bathroom choice are defeated by the facts. One argument is that allowing bathroom choice would put people in danger. This argument has considerable rhetorical power that derives from fear. After all, the idea that women and girls will be attacked in bathrooms is frightening. But does it have any logical force? Because some states allow bathroom choice, we have data about the danger. 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, those worried about misdeeds in bathrooms should be focusing on the threat presented by Republican lawmakers. The other argument is the privacy argument, which falls apart under analysis.

While some might advance these arguments in good faith, there are those who oppose bathroom choice because they dislike of transgender people and make the “transgender people are icky argument.” This “argument” has no merit on the face of it, which is why it is not advanced as a reason by opponents of bathroom choice. Instead, as noted above, politicians and pundits rely on false claims about danger, using the psychological force of these lies in place of the logical force of evidence. But can a good argument be made for restricting bathroom choice?

A stock problem with utilitarian arguments is they can be used to justify violating rights. This occurs in cases where the benefits received by a numerical majority come at the expense of harm 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 harms people who oppose it, the rights of anti-choice people are being violated. This then makes the matter one 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; that is the nature of public goods. There are, however, reasonable limits placed on access. For example, the public is not allowed to go into a school during normal hours to use the bathrooms. Similarly, the bathrooms in courthouses and government buildings are often not open to anyone to wander off the street and use. So, like all rights, the right to public bathrooms does have limits. It can thus be assumed that transgender people have bathroom rights as do people who oppose bathroom choice. 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 share bathrooms with transgender people. Or whether the right of anti-choice people to force transgender people to use specific bathrooms overrides the right of 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 a reason 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 end of race segregated bathrooms was proposed, there were dire warnings that terrible things would occur if bathrooms were integrated. Obviously enough, these terrible things did not take place. Whites could 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 seem to trump the right of blacks to use the bathroom. Likewise, the right of transgender people to choose their bathroom would seem to trump the right of anti-choice people to exclude them.

It can be objected (using a slippery slope approach) that if this argument is taken to its logical conclusion, then bathrooms should be gender neutral. While many will have an emotional reaction to the idea, there is the historical question of why bathrooms were segregated to begin with.  While people might think this has always been the case, the first regulation requiring separate facilities for men and women was not passed in the United States until 1887. The ideological rational behind the separation was the view that women are weaker and needed protection in public spaces. But this separation was not limited to bathrooms as women had their own reading room in public libraries and even their own train cars. But these other gender segregated areas eventually vanished in most of the United States. We do not, for example, have women only seating sections on planes. As such, while it might seem odd to accept gender neutral bathrooms, it was once odd to suggest integrated libraries and transportation, which are now accepted without a thought in most of the United States. One can, of course, raise the danger and privacy arguments against allowing gender neutral bathrooms, but attacking people and harassing them are both already crimes, whether they occur in bathrooms or not. Bathrooms can also be designed to allow privacy (enclosing or replacing urinals and making stalls peep proof). To be fair, it can be argued that a person using the bathroom is more vulnerable to attack and that bathrooms usually only have one exit, making escape more difficult. Given the number of men who seem onboard with “your body, my choice”, women are now even more justified in being wary of men and hence a case can be made to keep bathrooms separate to keep men out.

But making this argument in good faith would require considering all areas where men are likely to harm women and establishing gender segregation in these areas. This would be most, if not all, areas in the United States showing that it is not bathrooms that are the danger, but bad men.