A Good-Faith Debate on Transgender Rights

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Readers go back and forth regarding the best ways to address the contentious politics surrounding bathrooms and other areas of transgender rights and identity. To join in, especially if you’re transgender yourself or a conservative critic, please send a note to hello@theatlantic.com.

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Chris Bodenner

2:55 PM / June 29, 2016

Why Not a Private Restroom for Everyone?

From reader Hunter Oatman-Stanford:

I enjoyed the reader comment in your recent note that outlined how the so-called bathroom bills may actually require people to use bathrooms that don’t match their genitals:

Since people are, in fact, getting reassignment surgery across the country, one can imagine a scenario in which a transgender man who has received surgery and as such has male genitalia, who identifies as a heterosexual man, would be forced to use a women’s bathroom AS A RESULT OF THESE LAWS.

The laws implicitly assume that people are more comfortable using a restroom or locker room with only one gender, when it’s common knowledge that many people are uncomfortable even in gender-segregated spaces, hence the stereotype about middle-school kids hating to shower after gym class.

If locker room or bathroom anxiety is a common issue, why aren’t we pushing to make all of the spaces accommodating to people who want real privacy by offering gender-neutral, single-person stalls? Much like the retrofitting requirements of the ADA [Americans with Disabilities Act], this seems the logical way to approach public accommodations.

A pricey one, though, and who’s going to pay to retrofit all those bathrooms? The local, state, or federal government? Presumably federal, given the recent directive from the Obama administration over transgender access to school bathrooms under Title IX. Perhaps it’s a relatively small price to pay—not only for trans Americans’ desired access, but privacy for all kinds of people.

This next reader and transgender woman, Emily, makes a similar case as Hunter’s. Her note is specifically responding to the one from reader Ben Denny, “Does the Left Have a Smug Problem?”—a call for intellectual honesty and openness to opposing views when it comes to the caustic debate over bathroom access. Here’s Emily:

None of us is immune from smugness. I can attest to it coming up in my own words or behavior at times. I agree with Mr. Denny in that it is helpful to remind oneself of ones foibles from time to time.

Interesting that he picks the transgender bathroom issue to use as an example. I am a transgender woman, and no one is going to be, or ever has been, endangered when I use the women’s restroom. (We are usually the ones subjected to violence and horrible discrimination due to nasty and untrue stereotypes about us.) The possibility that some man might dress up as a woman and commit perverted acts was there long before transgender people ever came into the consciousness of most Americans.

Is there a realistic fear of this sort of attack? Then make all restrooms single-use, gender-neutral spaces.

This would both make sure that anyone using the restroom will be able to securely lock the door and solve the problem of parents out in public with their opposite-sex children, caretakers assisting people with disabilities who need help in the rest room, and transgender people who do not see themselves as male or female. [CB: Hunter also made a strong point that’s relevant here: “When the justification of these bills is to prevent sexual assault, why is it not brought up that children can (and are) assaulted by members of their same biological sex, sometimes in bathrooms? Why do we insist on ignoring the evidence of cases like Dennis Hastert or the many Catholic Church officials who assaulted boys in male-only spaces?”]

Mr. Denny asks for healthy pushback toward both the left and right side of the spectrum when they overreach. How is it not overreach to pass the bathroom bill aimed at transgender people without consulting us? Perhaps some of the reaction has been imperfect. It is still a fact that some of the proponents of these bills do think we transgender people are just “deciding to change genders”—an inaccurate view that renders us non-existent and has been used to hurt us in palpable ways.

I would be happy to have a reasonable discussion with Mr. Denny on this subject. I would point out, at the same time, that idea markets are not always fair; much can depend on who has the power to enforce their ideas.

I was denied gender confirming surgery by my healthcare provider based on Medicare’s denial—a denial that had been disputed by the AMA, APA and WPATH for more than a decade. Their reasoned, evidence-based statements did little to change this unjust denial until the political situation changed, and that was in large part due to some of the admittedly sometimes messy and loud advocacy by transgender people and their allies. The people who stood firm against this change were little affected by reasonable debate. I know because I tried for over a year with my provider with no success.

I am not against reasoned debate; to the contrary, I spent 14 months attempting to have a reasoned debate with my provider over their denial, one which they had it in their power to change. And if some of the people pushing for these bathroom bills have their way, we transgender people will be pushed back into the closet. In fact, not being able to find a safe restroom will have exactly that effect for many people. The closet is a painful place to live; I know from personal experience.

Lastly, reader Michael relays a sensible approach to prevent the exploitation of bathroom laws by non-trans people merely dressing up:

Think Progress had a good explanation of the Washington State restroom ordinance that addresses specific concerns about the possibility of abuse of the ordinance. (Full disclosure, I used to work at Center for American Progress.) The ordinance does not fine or jail people if they question or deny access to a trans person who tries to use the restroom that conforms to their gender as long as the denial of access is based on a reasonable, good-faith assumption that the person is not trans and may be trying to gain access to the restroom to engage in illegal activity.

If a non-trans person tries to get into the opposite-gender bathroom for nefarious purposes under the false pretense that they are trans and is denied access, either that person would not file a discrimination complaint or, if they did, the complaint would easily be dismissed upon a quick investigation.

Granted, a conservative troll could file a complaint and try to fight it tooth and nail just to prove a point, but we should not require laws to be so airtight as to be immune to aggressive trolling. Conversely, if a trans person is legitimately trying to use a bathroom that conforms to their gender and they are denied access based on the access-denier’s good faith belief that the person is not really trans and may be up to no good, and as a result the trans person files a complaint, then the Washington State human rights commission does not have the authority to jail or fine the access-denier. Instead, the commission carries out a mediation that allows both parties to resolve their misunderstanding amicably.

This shows that the state allows for the possibility that you are not a bigot and are acting in good faith if you deny access, as long as you allow for the possibility that the person you denied access to might actually be trans and are willing to apologize if they are. As long as both sides act in good faith, misunderstandings can be resolved and the state can facilitate their resolution with a well-crafted ordinance.

I understand that popular cynicism assumes that vindictive litigiousness will always win the day in American society, but well-crafted laws and fair-minded institutions are capable of ameliorating that … if, of course, people would stop being so smug.

Chris Bodenner

12:52 PM / June 29, 2016

'Trans Issues Are Not Left/Right'

An especially valuable view from reader Adam:

Hi there! I have written in a few times before [with a dissent against Neal Gabler’s cover story and a pro-polyamory perspective] and I wanted to comment on the question of whether the trans movement is a spiritual one. I am transgender man; I transitioned more than six years ago and it saved my life.

Trans issues are not a left/right issue. They are a human issue. The suggestion by your reader that Caitlyn Jenner is part of “the left” is totally absurd. Her first pick in this election season was Ted Cruz. And “the left” is not broadly making spiritual claims in favor of trans rights. In fact, the mainstream left arguments all tend to come back to “born this way” narratives about being trans having a biological basis, which the evidence suggests it does. Caitlyn Jenner is an individual human being describing her own experience. She happens to be trans and quite conservative.

It is not unusual for trans people to talk about our lives this way; I certainly do. Trans people are not part of some anti-religion communist conspiracy. Many of us are religious, just like many non-trans people. A trans person sharing their perception of God’s will in their lives is no different from a person who says “I think it was God’s plan for me to fall in love with this person/pursue this career path/etc.”

As for circular definitions of the word “woman,” that’s not on trans people or our allies; it’s a flawed concept to start with.

There is tremendous sexual and gender diversity in our species. There is no single biological measure than can be used to define a woman or man. It’s more like a messy venn diagram.

Intersex conditions are way more common that people think. Many people deviate from the male/female binary in our textbooks, from birth or from a later point. If one really scrutinizes it and goes looking for “man-ness” or “woman-ness,” one finds that nothing—not hormones, not chromosomes, not genitalia, not gonads, and certainly not any personality trait—is actually a completely reliable sure thing.

Gender is a social structure overlaid onto the spectrum of biological sexual difference. There is excellent reason to think our brains play key roles in how we navigate this system, as described in the articles you linked to. Some people just don’t fit the box, whether that be trans people, intersex people, gay, lesbian and bisexual people, and other folks, too.

Can you have compassion for us, and allow us to participate fully in our communities? Or do you care more about pink and blue divisions than you care about human beings?

Perhaps a bit of my own story would helpful here. I was not that kid who could say at age 3, “I’m supposed to be a boy.” I was that kid who was severely depressed by the time I started kindergarten. I suffered under the fog of clinical depression every day of my life from age 5 until I finally began to express my male self, a process when I was 17-22 years old.

Fifteen years is a lot of life to waste to misery. I remember being 5 or 6 and screaming at my mother till my voice went hoarse: “I hate you and I wish I had never been born.” This was a nightly occurrence for long stretches of my childhood. I truly wished I did not exist and I blamed my mother for giving me life.

I did not realize at the time that it had to do with gender. What I realized was that there was something profoundly, permanently wrong with me. It felt like everyone else could see it, but I could never put my finger on what it was.

Finally, in my late teens, after a lot of support from therapy, antidepressants, my family, my religion, and good friends, I somehow found the wherewithal to face it. I began allowing myself to wear the masculine clothing I had always secretly wanted, I cut my hair short, I took on a gender-neutral nickname. It was like I’d had a dull headache my entire life and it was suddenly gone.

Bit by bit, I grew up into a man. I knew hope for the first time in my life. I became able to imagine myself getting married, having a family, growing older, being someone.

Today it’s been some ten years since I first allowed myself to express my masculinity and more than six since my social, legal, and medical transition. I have an ordinary life. I am happier than I ever thought possible. It is no understatement to say that transition saved my life.

Chris Bodenner

8:00 PM / June 28, 2016

Is the Transgender Movement a Spiritual One?

This week at the Aspen Ideas Festival (which The Atlantic is covering at length), Caitlyn Jenner made an appearance with her memoirist, Buzz Bissinger, who asked her the question, “What has it been like to finally reach your soul?” Jenner’s response:

From a subsequent segment, here’s a quote that Julie captured:

“This is how I explain myself,” [Jenner] said. “God’s looking down and he’s making little Bruce. He said, ‘What are we gonna do with this one? Let’s give him good looks, make him intelligent, make him athletic, that’s kind of cool. Let’s make him really athletic—that’s even cooler.’ He gets to the end and goes, ‘Look at all these wonderful qualities we’ve given this one. But everybody’s got their stuff, what are we going to give this one to deal with?’ He sits back, chuckles, and says, ‘Let’s give this one the soul of a female and see what happens.’”

A reader responds to that personal parable:

This discussion is so weird for the left to be having. On the one hand, they can’t explain transgenderism biologically. Someone who is physically male, with male chromosomes, and male sex organs is, by definition, “male.” Yet they also proclaim that “nothing is ‘wrong’ or ‘abnormal’” with transgenderism. To them it cannot be a mental health issue. So if it can’t be a biological issue, nor a mental health issue, then it’s a “spiritual issue.”

And, hot damn, that’s a really odd position for the left to take. What the left is essentially arguing, unbeknownst to them, is that a person’s “soul” doesn’t fit their biological state. Not a “mental soul” or a “brain state” but a true “spiritual self.” The left is arguing in favor of religion, they don’t even realize they are doing it.

(For Jenner’s part, she is not exactly of the left; she’s outspoken as a Republican and has said better things about Trump and Cruz than Hillary Clinton.) Another reader also sees a religious parallel in the rhetoric:

Chris Bodenner

2:15 PM / June 7, 2016

Much Ado About Genitalia

A reader writes:

I was a longtime subscriber and sometimes contributor to The Dish, so it’s nice to see you up and running again with all this bloggy goodness. Anyway, as this debate (if it really can properly be called one) about restrictions on transgender bathroom use goes on and on, I’ve had a question that I’ve not yet seen addressed.

From what I understand, this [North Carolina] legislation seems to be provoked primarily by the concern that someone with a penis will end up in a women’s bathroom and commit an act of sexual assault, and that they will have gotten the right to use this bathroom on the basis of a real or malingered transgender identity. And, because you can’t convincingly know someone else’s experience, it seems like the legislation being passed is primarily aimed at the issue of someone with a penis being in a women’s bathroom.

Now, as things currently stand, yes, it’s possible that an individual who identifies as a woman will still have male genitalia, and in choosing to use a woman’s restroom will create a situation in which one room is playing host to people with both male and female genitalia. That said, these laws, as currently constructed (i.e. the idea that one must use the bathroom designated by their sex as determined by birth certificate), ensure this will happen for some percentage of people regardless, based on reassignment surgery.

Different states have different rules about whether, how, and in what circumstances sex can be altered on a birth certificate, and I would imagine the states proposing these laws are likely less accommodating on that front. Since people are, in fact, getting reassignment surgery across the country, one can imagine a scenario in which a transgender man who has received surgery and as such has male genitalia, who identifies as a heterosexual man, would be forced to use a women’s bathroom AS A RESULT OF THESE LAWS.

Essentially, these laws, because of the lack of understanding of issues of gender and sexual identity on the part of the people writing them, create exactly the “nightmare scenario” (a sexually interested member of the opposite sex in a bathroom with “our women”) they’re intending to forestall. Does anyone else find that kind of funny, or just me?

The reader makes a good point, showing the incoherence of a lot of these bathroom bills. But reassignment surgery or not, genitalia is rarely seen in public restrooms anyway, primarily due to stalls, so the much more visible—and thus disruptive—factor is hair and clothing. A transgender woman, conventionally dressed as a woman, perhaps in a dress, is a startling sight in a men’s bathroom if the law forces her to use the bathroom of the gender on her birth certificate (male). If that person got hormone and reassignment surgery, providing her breasts and female genitalia, that would still be much less of a visible factor than feminine clothing, hair, and makeup.

Locker rooms, however, are a different story; people in them change clothes in front of other people or take showers nearby, and both activities involve full or partial nudity. Transgender individuals with genitalia different than everyone else in the locker room are far more noticeable than transgender individuals using a bathroom stall. Would the presence of a transgender guy with breasts and female genitalia showering in a guy’s locker room, for example, increase the likelihood of sexual or nonsexual assault? That’s one of the tricky questions that doesn’t seem relevant to the bathroom bills.

Do you have any thoughts along these lines—the differences between bathrooms and locker rooms—or about the transgender debate in general? Drop us a note. By this point there are countless Atlantic pieces to use as a reference point, but Emma’s recent essay, “America’s Profound Gender Anxiety,” has a lot of things to grab on to. One commenter on her piece, a self-described progressive, makes an essential point about the political debate right now:

The T has always rested uneasily with the L and G in GLBT. Gays and lesbians tend to be—whether they realize it or not—pretty gender essentialist. It’s a not well-kept secret in the “movement,” and it's an issue of long standing. The T for transgender as currently being dogmatized by academics is nothing like the T for transvestite, which actually plays ON gender essentialism and evaporates with the New Transgenderism.

The New Yorker’s Michelle Goldberg has a must-read essay about that long-standing tension over gender essentialism, “What Is a Woman? The dispute between radical feminism and transgenderism.” Emma’s reader also makes this meta point: “The problem with epistemic bubbles today is that if people read their opponents, it’s mostly to confirm themselves in their Right-Thinking (TM), instead of actually considering that their own arguments may not be as persuasive as they realized.” So if you’re interested in popping these bubbles, away from the epistemic closure of the comments section and social media, please let us know.

Chris Bodenner

12:15 PM / April 26, 2016

Does the Left Have a Smug Problem?

Last week, Vox’s Emmett Rensin wrote a blistering critique called “The Smug Style in American Liberalism.” Whatever you think of the essay’s merits, Vox deserves a lot of respect for running it, since Rensin implicitly casts criticism on the left-leaning explainer site:

Elites, real elites, might recognize one another by their superior knowledge. The smug recognize one another by their mutual knowing.

Knowing, for example, that the Founding Fathers were all secular deists. Knowing that you’re actually, like, 30 times more likely to shoot yourself than an intruder. Knowing that those fools out in Kansas are voting against their own self-interest and that the trouble is Kansas doesn’t know any better. Knowing all the jokes that signal this knowledge.

The studies, about Daily Show viewers and better-sized amygdalae, are knowing. It is the smug style’s first premise: a politics defined by a command of the Correct Facts and signaled by an allegiance to the Correct Culture. A politics that is just the politics of smart people in command of Good Facts. A politics that insists it has no ideology at all, only facts. No moral convictions, only charts, the kind that keep them from “imposing their morals” like the bad guys do.

One of The Atlantic’s most frequent reader contributors, Ben Denny, highly recommends the essay and applies it to a few examples in the political discourse:

I lean pretty right, so I’ve been thinking the general uncharitably of the left for a long time. The essay mentions Jon Stewart as a driving force of the smugness movement, and I think that’s pretty on-point. Before the dominance of The Daily Show, the people I knew on the left who would make a snide, complete-sounding comment devoid of actual content and consider the argument settled were the dumb ones. During and after Stewart’s reign, though? All of them, or nearly so.

With few precious exceptions I can’t find anybody who is interested in political conversation anymore. Most of the kind of people I used to be able to have a friendly argument with are now convinced that anyone not on their side is either stupid, a bigot, or both. Many others can tell that isn’t true but can’t have the argument anyway. After being told that the other side is arguing in hateful bad faith for the majority of their adult lives, they never learned how.

A good example of this smugness in play is the common “If you are for the decent treatment of women, you are a feminist. We have a word for non-feminists: Sexists.” Let’s disregard that feminism is a giant movement with many complex offshoots advocating for any number of things ranging from reasonable to bat-shit crazy. If you don’t sign on with us, 100%, you are either a sexist or just ignorant. Maybe more soundbites will fix it.

Another decent but heavier example of how this forced “Anyone who doesn't agree with us is evil” dialogue works out can be seen in the Houston Equal Rights Ordinance (HERO), which would have let trans-gendered people use whichever restroom they felt comfortable with.

This would have had a positive effect for the folks for whom the law was designed, but the law was also not without potential issues. Any law that allows trans people to use whichever restroom they feel more comfortable with also allows anyone to do so, unless an arbiter of some sort is empowered to declare who is and isn’t genuinely trans. Nobody would dare do this, and as such trans is as trans says it is. Anyone could have used any bathroom, and anyone who wasn’t trans but was called on it would have had avenue to sue. It was a mess waiting to happen.

Proponents of the bill were quick to point out that trans people aren’t known for violence when using the opposite sex's bathrooms, and I agree with them on this. Even if every trans person was a celibate asexual, though, it wouldn’t matter. The danger is not from the law when used correctly, but when a poorly designed law without necessary fail-safes is abused by those it wasn’t designed for.

Proponents will be quick to point out that there’s no record of this happening, either, but laws that would allow them to do so don’t exist yet. Hunting season isn’t open yet, but I think that anybody who trusts the criminal perverts of America to do the right thing on this issue is probably a little more optimistic than reality will back up.

This isn’t to say that there weren’t hateful reasons for fighting the bill, as I’m sure there were, but every concern of any kind related to HERO was dismissed as hatred and ignorance by the act’s proponents. The narrative was quintessential smugness: Our side is 100% right, and your side is 100% hateful bigots whose opinions don’t matter.

I tried, in writing this email, to find any article that acknowledged that “the law can be abused” angle as legitimate, but I was unable to. [CB note: If you are able to, please email.] The narrative was simple: fall in line, or we will call you a bigot. When the people of Houston saw every concern—legitimate or not—hand-waved away, they rejected the bill entirely.

Is it surprising that this bill failed and that other bills are being introduced and passed to preemptively counter this “threat”? I don’t think so. I think a massive amount of Americans have come to the realization that the establishment left doesn’t accept anything but absolute party-line adherence. I think it would have been impossible for them to not notice that debate and discussion aren’t allowed anymore and that the media as a whole isn’t willing to give a fair representation to arguments that run counter to a generally socially progressive agenda, even where legitimate points of debate are to be had. Faced with the reality that they would be considered racist, bigoted homophobes unless they completely abandoned every single element of their beliefs and political convictions, massive amounts of Americans have stopped caring about any media influence’s opinions.

Everyone loses here. I don’t think any reasonable person really believes that either side of our political spectrum can be healthy without push-back from the other side; no powerful group is without its excesses, and without competition to trim them, overreaches can become dangerous. Neither side can be 100% right; we need dialogue and disagreement to refine us.

While I’d like to be glad about the current revert to the right the country is going through, I think Trump is a very good example of why I can’t be. His candidacy doesn’t happen in an idea-market where reasonable debate between people of differing party affiliations is possible, but without change I suspect our future holds more of the same. This is bad for all of us.

Disagree with Denny? Does Rensin’s essay miss the mark? Email hello@theatlantic.com and we’ll air the strongest counterpoints. Or, if you agree with Rensin and Denny and want to highlight notable examples of the “smug style,” we’ll consider those too. (Personally I think they unfairly single out Jon Stewart, whose self-deprecating style is much less smug than, say, Bill Maher. Update: Rensin clarifies via Twitter: “For what it’s worth, I don’t think Stewart is personally smug, just that he was weaponized by Knowing.”)