Whose Bathroom Is It, Anyway? [Good Life series]

What happens when you mix politics, bathrooms, and sexuality? Let the joking begin.

A politician walks into a transgender bar. [Fill in the blank here.] Afterwards, he tries to explain: “I really only wanted to use the bathroom.”

Ha ha. But the serious business is the busybody politicians in North Carolina and Tennessee who have floated legislation specifying genitalia requirements for bathroom use.

Much of this is political tit-for-tat. Some petty authoritarian politicians, mostly Democrats, passed legislation forcing Christian bakers to make cakes for gay couples’ weddings. So now some Republicans — in the best tradition of political small-mindedness — retaliate with legislation barring transgendered persons from using the bathrooms of their choice.

Meanwhile government deficits continue to balloon, public schools are often a disaster, and all Americans are experiencing a scary-disturbing presidential election.

You might ask: Who gives a shit? That’s exactly the deep question some of our politicians want to decide for us, as the baker-bathroom tit-for-tat does highlight warring moral and political principles. When can we opt into or out of relationships? With whom can we be compelled to associate? If my reasons for wanting to associate or dissociate are irrational, should that make any political difference?

In philosophical terms, the debate is about the freedom of association and dissociation — versus the moral principle of not discriminating irrationally. The antagonists are we (true) liberals versus authoritarians of both left-politically-correct and right-conservative stripes.

One side argues: Every individual’s freedom of association is politically fundamental, so some irrational discriminations must be tolerated. The other side argues: Some discriminations are irrational, so they should be banned politically.

Some examples, from simple to complex. Suppose that I’m a baker, and I refuse to serve a customer because he parts his hair on the right. In the context of selling baked goods, whether a customer parts his hair on the right or the left or in the middle, brushes it straight down or straight back, or has no hair at all — is irrelevant. So discriminating on that basis is irrational, and since such discrimination damages a potentially valuable relationship, it is immoral.

But now suppose that I refuse to serve a customer because he was rude to my daughter last month at a party. In the context of selling baked goods, his past rudeness is irrelevant. But I’m not only a baker, and as one man relating to another his rudeness is still relevant. It may very well be rational of me to refuse on principle to associate with rude people.

Now change the examples from hair-parting and rudeness to race. Suppose that a young couple who are members of the Ku Klux Klan want a black baker to make them a wedding cake. But the baker is disgusted by the KKK’s views on race and so refuses to serve them. Contrast that to a baker who is a member of the KKK and is disgusted by a young interracial couple who want him to make their wedding cake.

The liberal response to all of these cases is that the distinctions being made of course matter morally and socially — some of them are irrational and others are rational. But none of them involve compulsion, so they should not be political matters. They do not violate the principle of liberty, and we should respect each individual’s right to make his or her own choices about whom to associate with.

Christian bakers should not be forced to make cakes for gay weddings, just as African-American bakers should not be forced to make cakes for KKK weddings. As a result of their choices, some bakers will make or lose money, as customers will be free to spend their money or not on bakers they like or dislike. All parties’ right to association and dissociation is respected.

The authoritarian response, however, is to say It depends. Left-authoritarians will argue that gay marriage is a legitimate option, so the Christian who refuses the gay couple is behaving irrationally; and since gays have been subject to much irrational discrimination, political compulsion should override the Christian’s liberty. Meanwhile, the black baker’s revulsion against the KKK customers is rational, since it is in response to the Klan’s irrational discrimination, so the black baker’s liberty should be upheld. Consequently, whether one has liberty then is seen as contingent — depending upon whether one is discriminating rationally or irrationally.

Exactly the same debate plays out in the transgender bathroom battles. Who should use which bathrooms—in your home, in your business, in public parks or government buildings?

Some people are comfortable only sharing bathrooms with members of their own family, or only with members of their own sex. For yet others it depends on whether the bathroom is a solo or multi-person with many stalls. For others it does not matter in any case.

We liberals say we should sort out bathroom practices voluntarily. In our own homes, we should be free to establish whatever bathroom-use policies we choose, and there will be lots of individual variances. The same should happen in the workplace and open-to-customer establishments. Some fitness clubs, for example, will be open to both/all sexes, and some — women-only health clubs, for example — will discriminate in allowing access to workout rooms, classes, saunas, locker rooms, and bathrooms.

Some restaurants, to take another example, will adopt unisex bathrooms and some will adopt the traditional male/female distinction—and some may add third or fourth categories if they choose. Restaurant-owners will be free to associate with others on terms acceptable to them, and they will gain or lose money as their customers make their preferences known — if you don’t like a restaurant’s bathroom policy, you don’t have to go there. Everyone will make their own choices, and preferred social conventions will emerge.

(Jon Swerens here nicely affirms Michael Moore’s liberty right to dissociate from those he thinks are making the wrong discrimination.)

But the authoritarians—right-wing in this case—disagree. From their perspective, the transgendered (Bruce/Caitlyn Jenner as outrageous Exhibit 1) are irrationally denying a relevant fact: the biology of their sex at birth. Males are males and females are females, so it is perfectly appropriate that women feel uncomfortable sharing a bathroom with “women” who were once men and that men dislike going to the john with “men” who were once women. Since their feelings are rational — and those who are denying biology are using an irrational categorization — the trangendered can be prevented, by law, from using the wrong bathroom.

Additionally, those workplaces and restaurants that are fine with the transgendered’s using the bathroom of their choice — their willingness must also be overridden. We shall empower the Genitalia Police to determine the proper sexual identity for those who need to go potty.

(Which also raises the side question of gay and lesbian bathroom policy. Should we mandate that gays and lesbians and heterosexual men and women all have separate bathrooms? Some conservative straights are uncomfortable sharing space with gays and lesbians and so are open to allowing separate bathrooms. Yet they also often argue that gays and lesbians are denying their sexual biology.)

From the liberal perspective, however, whether a person has a healthy or abnormal sexual psychology is not a political issue — as long as no force is involved. Whether individuals in their private associations are making rational or irrational discriminations about religion or race or baked goods is not a political issue — as long as no force is involved. Free individuals will make their own distinctions and decisions, and others will agree or disagree and associate or dissociate. We will sometimes be inconvenienced, our feelings will occasionally be bruised, and our capacities for tolerance will regularly be put to the test. Yet out of countless discussions and transactions will emerge voluntary practices that reflect the choices of all individuals involved.

The best we can hope for is that we will continue to experiment and learn which practices most fit the great variety of human needs — rather than allowing politicians to impose one-size-fits-all solutions on the rest of us.

[This article was originally published in English at EveryJoe.com and in Portuguese at Libertarianismo.org.]

[Related: The full archive of my articles in The Good Life series.]

3 thoughts on “Whose Bathroom Is It, Anyway? [Good Life series]

  • July 25, 2017 at 2:09 am

    I don’t agree about the Michael Moore situation because Moore is not limiting his action to those with whom he disagrees. It’s more like a case of a black baker refusing to sell to any whites, even say Freedom Riders, because of previous bad treatment by the KKK. His discrimination is too badly targeted to be rational.

  • July 28, 2017 at 4:00 pm

    Dr. Hicks, you have obviously thought long and deeply about this. I greatly value your thoughts on this and many other things. On the whole I tend to agree that this issue will resolve itself, the Spontanious Order effect.
    I do have a serious question however. Gender has become a subjective thing, a person would have the option to say the magic words “I identify as a woman” and then enter whichever toilet, changing room, etc… they desired. Again, as a rule this will not be an issue. My concern is that predators will go where the prey is.
    A poor example: You or I are about to enter a stall in a public restroom. An obvious woman enters and walks toward the stall. For us, the needle on the Threat Meter would not move. Consider the opposite where a woman about to enter the stall she’s an obvious man enter and walk towards her. The needle would peg.
    We don’t always have to wait for actual harm before acting, but frankly I can’t riddle this out in this case.
    I am serious, not trying to troll or pick a fight, I want your thoughts.

  • July 30, 2017 at 8:06 am

    Dear Steve: If we focus on the possible predator/prey scenarios, aren’t they a matter of harassment and assault? They would be handled as breaches of civility or law are handled, whether they occur in bathrooms or anywhere.

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