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rant

Bathroom laws again

So "bathroom laws" are in the news again, with the Obama administration's announcement that what it's been telling North Carolina to do also applies to public schools everywhere in the country.

We all grew up with a simple rule for bathrooms: in public places, you use the bathroom corresponding to the sex you look like when fully clothed. And even if North Carolina's HB2 went fully into effect, that would still be the rule in practice: nobody's going to hassle you for going into a women's room if you "look" female when fully clothed.

For most people, most of the time, the sex you "look like" (not only physiognomy but clothing and hairstyle) corresponded to your chromosomes which corresponded to your physical sex organs which corresponded to the sex written on your birth certificate which corresponded to what kinds of toys you liked to play with which corresponded with your occupation, so the choice of criterion didn't matter for most people. But if you looked male and walked into a women's bathroom, you would get funny looks, at the very least.

North Carolina's HB2 changes this century-or-two-old practice: they no longer care what sex you "look like", but rather what sex is written on your birth certificate. It wouldn't be a significant change if we lived in a world in which those two criteria always matched, but we don't and it is. The law is a toddler's tantrum of protest against the world's unfairness by closing our eyes and resolutely pretending we do live in such a world.

Whenever you pass a law, you have to think about how you'll enforce it, and whether in fact you can enforce it at all. If not, passing the law is a political exercise, not a good use of taxpayer money.

NC-HB2 is unenforceable. Most people view me as male, so if I walked into a women's bathroom in North Carolina, a police officer could reasonably stop me for violating HB2. At that point, however, they know only that I look male when fully dressed; if in fact my birth certificate says I'm female, I am doing not only what the law allows but what the law requires. The burden of proof is on the police officer to show probable cause, and on the state to show guilt, not on me to show the reverse. The officer could ask to see my birth certificate, but I don't routinely carry it with me, and surely the North Carolina legislature didn't intend to require me to do so. The officer could, with sufficient probable cause, conduct a strip search, but that shows only whether I have a penis, not whether my birth certificate says I'm male. The state could subpoena my birth certificate, but if I honestly don't know where it is, I cannot comply with that subpoena; surely the state didn't intend that people without birth certificates can't use public bathrooms.

In practice, the law will inevitably (as it was intended to) be applied discriminatorily -- not only by law enforcement but by vigilante justice. If you look male but your birth certificate says you're female, you have a choice between breaking the law every time you use a public bathroom, and being accused of breaking the law every time you use a public bathroom. If your fully-dressed appearance matches your birth certificate, on the other hand, you can cheerfully obey the law without being hassled. If your fully-dressed appearance is sexually ambiguous (by local community standards -- it could include a man in a kilt or a woman with a shaven head), you don't even have a choice: you're likely to be accused of breaking the law no matter what you do. The real effect of the law (aside from whipping up "the base" in an election year) is to officially authorize harassment of sexually-ambiguous-looking people: they need to be punished for causing us cognitive dissonance, because their existence demonstrates that we don't live in a neat and tidy world.

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