Looking to reframe LGBT fight, U.S. conservatives head to the bathroom

The new strategy behind North Carolina's controversial law involves asserting the right to discriminate: the right not to serve, or care for, or sell to, or buy from, or employ anyone who isn't behaving like a confirmed heterosexual.

New strategy behind North Carolina law asserts right not to serve, care for, sell to, or employ

Demonstrators rally outside the state capitol in Raleigh, N.C., in support of a law that blocks rules allowing transgender people to use the bathroom aligned with their gender identity. (Gerry Broome/Associated Press)

There is something atavistic about the desire for privacy in a bathroom.  

Toddlers in diapers retreat to another room to do their business. Even animals seek a bit of seclusion. It's a vulnerable moment.

Which probably explains why conservatives intent on denying transgender people equal rights so often reduce the entire issue to the bathroom. And perhaps why the issue has now actually made its way into the U.S. presidential campaign.

North Carolina just passed a law stipulating that anyone using a public bathroom must use the bathroom assigned to the gender appearing on his or her birth certificate.

Actually, even that language might misstate the issue. People who are trying to figure out their gender, or who say they are "non-binary," meaning no gender at all, object to the pronouns "his" and "hers." Increasingly, a transgender person wants to be referred to as "they," or by neologisms like "xe."

But North Carolina Republicans regard such fine distinctions as "political correctness," and anything politically correct, in this election cycle, is poison.

North Carolina Gov. Pat McCrory signed into law the controversial bill that requires all bathrooms in the state be used only by people according to the biological sex on their birth certificates. (Jerry Wolford/Bloomberg)

The right to discriminate

That state's GOP legislators are determined that even if a man has gone through the agony and expense of sex reassignment surgery and has breasts and has become a woman to the fullest extent medically possible, that person remains a man, and must continue to use the men's washroom.

The same law applies to a woman who has become a man, or anyone anywhere on the spectrum between confirmed, heterosexual males and females.

Social conservatives dreamed up the whole bathroom issue as a new battle plan after losing the fight over same-sex marriage at the U.S. Supreme Court (not to mention in the American court of public opinion).

The new strategy involves asserting the right to discriminate: the right not to serve, or care for, or sell to, or buy from, or employ anyone who isn't behaving like a confirmed heterosexual.

And to add a righteous ring, they frame it as a matter of religious freedom.

That could be a bit of a stretch. What, exactly, Jesus thought about people imbued by nature (or, to use the evangelical term, God) with a sexuality or nature utterly at odds with their genitals is not spelled out in the New Testament, although given his fondness for the most vulnerable among us, you have to at least suspect he'd be pretty tolerant.

But that's America. Religious freedom there is widely defined by conservative Christians as not just the right to discriminate, but the right to hunt (and therefore carry guns), the right to protect children from the teachings of science in public schools, and the lack of any right to choose abortion. I have even had a religious lobbyist explain that Christians believe in low taxes and smaller government.

Bruce Springsteen is among the performers who have cancelled shows in North Carolina following passage of the controversial law. (Jamie Squire/Getty Images)

Reason to fear

Anyway, back to the bathroom issue.

Some conservatives, most recently Republican presidential candidate Sen. Ted Cruz, also cast it as a matter of protecting children from pedophiles.

Cruz remarked recently that "men should not be going to the bathroom with little girls."  

That may have a commonsensical ring to it, but it's a canard.

As gender rights advocate Randall Garrison puts it, it is transgender people who truly have reason to fear.

"Transgender people are always perceived to be in the wrong bathroom," says Garrison, a New Democrat MP whose private member's bill protecting transgender rights passed the House of Commons during the last session of Parliament, but was strangled by Conservatives in the Senate.

"The incidents of violence against transgender people in bathrooms are quite high. That's what makes this so perverse. Transgender people are the ones with the right to fear."

That has a ring of truth, if you think about it. Who is in the more precarious position: the 12-year-old girl peeing in the stall next to an effeminate adult who has decided she is a woman in a man's body, or that same adult, in makeup and a dress, lining up at a urinal in a men's bathroom at a roadside honky-tonk in Greenville, N.C.?

And besides, pedophiles prey on both genders. Using Cruz's logic, you should have equal concern about a grown man going to the bathroom beside a young boy.

Ah, say conservatives, but what about the possibility of a man pretending to be transgender seeking access to a women's changing room or shower?

Given the male/female power dynamic, wouldn't feminists have some concerns about a man with a penis, identifying as a woman, strolling into a group of showering college girls?

"They might," concedes Garrison. "But generally, women's showers are not communal. It's a fear-mongering tactic that has no basis in reality."

Protesters rally against anti-LGBT legislation in Jackson, Miss. on April 4. Pressure convinced Georgia's governor to veto a similar bill earlier this year. (Rogelio V. Solis/Associated Press)

Market forces

Garrison says he's been assured by Justice Minister Jody Wilson-Raybould that new legislation guaranteeing Canadian transgender rights is coming soon. (Her spokesman told CBC News any legislation will be announced "in due course.")

Meanwhile, North Carolina is paying for its new law.

LGBT people are often better educated, with higher than average disposable income, so the for-profit sector is paying attention.

Paypal has decided not to build a corporate centre in North Carolina that would have provided hundreds of jobs. Big-name entertainers are cancelling concerts.  National groups are calling off conventions. Professional sports dislikes such laws.

The capital city, Raleigh, reckons the new law has already cost it $3 million US in revenues.

It was that sort of pressure that convinced Georgia's governor to veto a similar bill earlier this year. Indiana caved, too. Activists are targeting several other mostly southern states with anti-LBGT laws.

The irony is rich. Free market forces, not politicians, may be settling this issue.

And market forces, to conservatives, are nearly as sacred as religious freedom.

About the Author

Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.


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