In April, the state of Mississippi did something unusual. It made the definition of man and woman a matter of law: “Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
The Magnolia state is not alone in grappling with the meaning of gender and sex. This spring, after North Carolina’s legislature ordered public agencies and local school boards to allow people to use only public bathrooms that correspond to their biological sex at birth, the U.S. Department of Justice announced it is suing the state. A similar bathroom bill was passed and vetoed earlier this spring in South Dakota. And the people of Washington will vote on a bathrooms ballot initiative in November.
America is experiencing a period of profound gender anxiety. Mainstream understandings of “gender” are changing, which may be why Mississippi legislators felt the need to codify concepts that have always seemed culturally implicit. Perhaps because the stakes are so basic, both sides tend to draw the other as caricatures: Those opposed to transgender bathroom rights are obvious bigots; those who support them want to allow “men in women’s bathrooms” and enable other predatory behavior.
Bigotry—fear or animus toward transgender people—is undoubtedly part of the outcry over bathrooms. But that’s not a sufficient explanation. To some Americans, maleness and femaleness is a basic, absolute part of what makes us human, a fact that undergirds their faith, sense of self, and daily life. To others, gender is mutable, ambiguous, and ultimately chosen.
American culture has been shifting in this direction for some time, pushed along by academic gender theorists, the sexual revolution, and the gay-rights movement. But even as feminists argued for decades that gender is socially constructed and multi-formed, and increasing numbers of people became open about being gay, lesbian, or bisexual, most Americans remained comfortable with the notion that some people are men and some people are women. All of a sudden, a different consensus seems to have emerged.
Culture can be selectively avoided, but the law cannot. Although some states have long protected transgender people’s access to public spaces, like bathrooms, those laws have been scattershot—roughly half the country does not have them. Until very recently, the federal government has not definitively protected transgender rights. Now, state governments that formerly did not concern themselves with these issues are being forced to confront them. And so are their people.
In some sense, America’s new wave of gender anxiety began with something very straight: marriage. Although recent debates have focused on trans people and bathrooms, they were enabled by the U.S. Supreme Court’s decision to legalize gay marriage in the summer of 2015. The strategy behind the same-sex-marriage campaign has been well-documented: LGBT advocates purposefully tried to make gay marriage seem as disconnected from sex as possible by putting older lesbians on ads and focusing on “love” over “sexual freedom.” Yet, some gender bending is implicit: Married to a person of the same sex, men and women have to define and reinvent how they relate to one another.
“So long as it’s just been an institution that’s made up of a man and a woman, a husband and a wife, [marriage] has had a kind of stabilizing effect,” said Katherine Franke, a law and gender-studies professor at Columbia University. Allowing gay people to get married is “destabilizing a gender binary,” she said. “I think it’s very unsettling to people, so it makes absolute sense to me that the next place they would go with that anxiety is targeting transgender people.”
At first, legislators focused on giving legal cover to business owners, government officials, and clergy who did not want to participate in same-sex-marriage ceremonies. These kinds of exemption bills, ostensibly created to protect religious conscience, are still being debated in statehouses around the country. They are a clear, direct reaction to the Supreme Court’s same-sex marriage decision.
But why did bathrooms come next? These bills seem to be about something slightly different. They’re not objections to what people do—having gay sex, for example, or getting married to a person of the same sex. They’re objections to what people are, which isn’t tied to any particular act. It doesn’t really matter who transgender people have sex with, or if they have sex at all. What matters is their status: If a person is designated a boy or girl at birth, the objectors say, that’s what determines his or her gender for life.
There are a number of possible answers to the question, why bathrooms? This is one of the last remaining gendered spaces in public life, where women and men are divided and body parts exposed. And transgender people consistently struggle with bathroom access—which can lead to higher rates of attempted suicide—making this a key issue for advocates.
But there’s also a more complicated explanation: Non-traditional notions of gender have finally become widespread enough to foment a sustained backlash. For a long time, the federal government hung back on creating firm protections for transgender people. But it has taken this question up in fits and starts over the last several years, recently making an unambiguous stand. The Justice Department maintains North Carolina’s bathroom law qualifies as sex discrimination under Title VII and Title IX of the Civil Rights Act. United States Attorney General Loretta Lynch compared the legislation to Jim Crow in a recent press conference: “State-sanctioned discrimination never looks good in hindsight,” she said. As the federal government takes steps to create protections for transgender people—which, quietly, it has—states will have less of a say in questions like where transgender people can use the bathroom.
In one sense, these legal protections are everything. Comprehensive legislation would outlaw discrimination in employment, housing, and public accommodations and provide protections in arenas such as health care. The law is essential for making sure transgender people can move through the world free from violence and harassment, and mitigating the side effects of extreme marginalization, including significantly higher rates of depression and suicide. But it’s also curious that these questions are being hashed out via lawsuits and legislation. “This is a very recent dynamic, where legislatures feel they need to define what it is to be a man and what it is to be a woman,” Franke said.
The law is an imperfect tool for shaping culture—a back-up cudgel for times when softer methods of persuasion don’t work. The fact that legislators in overreach-hating, small-government-loving states like Mississippi and North Carolina have resorted to the law to protect their notions of gender shows the depth of their panic about these ambient cultural shifts.
Politicians are taking note. In the dying days of his campaign, Ted Cruz picked transgender bathroom access—not the economy, not the fight against ISIS, not abortion—as his last hope to win conservatives away from Donald Trump. He stumped hard on the issue in the days before the Indiana primary, proclaiming the country had gone “stark raving nuts.”
The law is a back-up cudgel for times when softer methods of persuasion don’t work.
It didn’t work. Trump—who has said he would let Caitlyn Jenner, the transgender former Olympic athlete, use any bathroom in Trump Tower—beat him by a wide margin. Yet, Trump’s own rhetoric often emphasizes his masculinity and stresses the importance of traditional gender roles.
Gender is becoming a new litmus test in the culture wars. That’s one reason it’s so important to understand why, exactly, the specter of “men in women’s bathrooms” causes such anxiety—to understand its parts, beyond simple hatred. Progressives may believe attitudes on gender and sexuality will go the way of race, with history neatly arcing toward acceptance, aided by generational replacement and a bit of federal strong-arming. But just as that story doesn’t really capture the evolution of race relations in the United States, so the progressive narrative might not hold true on gender. While these bathroom bills may be a temporary flare-up, the divisions underlying them are foundational, and unlikely to be resolved by the Supreme Court or the Justice Department.
One word that consistently shows up in legislation about bathrooms and same-sex-wedding vendors is “religion.” These bills claim to protect people with sincerely held religious beliefs about the nature of men and women. Some opponents of gay marriage—largely conservative Christians—fear being legally compelled to participate in these ceremonies, with which they disagree. The exemption language tends to echo that in the Religious Freedom Restoration Act, a federal law that’s been emulated by many states, which was designed to protect Americans from being forced to violate their religious beliefs. Many publications have started using scare quotes or “so-called” when they write about these putatively religious claims, implying skepticism that refusal to serve LGBT people in any context is a matter of conviction rather than bigotry.
The two motivations—conviction and bigotry—are difficult to tease apart. Particularly in the United States, a country that remains more religious that its Western peers, faith and culture are in a feedback loop, complementing, responding, and reacting to one another. This is especially true when it comes to trans people in public bathrooms. Wisdom from the Bible can be brought to bear on any question, but on this issue, the ideas at stake are foundational. They are part of “the way of reading the Bible, going back to Genesis” said R. Marie Griffith, a professor of religion and politics at Washington University in St. Louis. “There’s this belief that God created man, and out of man, he created woman. And these are really crystal-clear categories. There’s something very deep and fundamental about that for the Christians who have … a way of thinking about the Bible as the word of God.”
The idea that someone might not identify with the gender that corresponds to the sex assigned to them at birth directly contradicts those categories. “Anything that challenges that idea, of the clarity of gender, is really suspect. It’s anxiety-producing, and it makes people angry,” Griffith said.
Some Christian leaders have tried to wrestle thoughtfully with this challenge to their beliefs on gender. Russell Moore, who leads the Southern Baptist Convention’s political arm, responded to Caitlin Jenner’s Vanity Fair cover with empathy, writing, “We do not see our transgendered neighbors as freaks to be despised. They feel alienated from their identities as men or women … In a fallen universe, all of us are alienated, in some way, from who we were designed to be.” To Moore, gender is part of how humans are created by God, and it is not our role to change that.
Many others share Moore’s belief, but without the same degree of empathy. Christians are used to being challenged on the truth of the Bible; after all, a core component of the faith is sharing the good news of Jesus with those who don’t yet know him. But challenges to the Bible’s description of gender attack something basic. And in some communities, these challenges are relatively new. This may be why the language of the bathroom backlash hasn’t been overtly religious. It has been the language of self-evident truth—gender difference as a fact that requires not faith, but logic, to understand.
The bathroom backlash hasn’t been overtly religious. It has been argued in the language of self-evident truth.
“It’s common sense,” said Vicki Wilson, a parent who is part of a lawsuit against an Illinois school district that has let a transgender student use the girls’ locker and restrooms. “All children must be protected and respected, and having common sense, reasonable boundaries in these private, intimate spaces is protected by law,” she said.
Under an agreement with the U.S. Department of Education that took effect in January, Township High School District 211 agreed to let “Student A,” as the transgender child is called in the legal proceedings, have access to girls’ facilities. “Student A” is to use a “private changing station” behind a curtain, and any other girls in the school are also allowed to use these stations. The other girls can also request further accommodation, like changing in a single-stall facility or getting their own schedule for using the bathroom.
With this new policy, the lawsuit claims, the 14-to-17-year-old girls at William Fremd High School “experience embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation, and loss of dignity because they will have to use the locker room and restroom with a biological male.” They don’t want this person to see them without their clothes on, and they don’t want to have to look. They “are afraid of having to attend to their most personal needs, especially during a time when their body is undergoing often embarrassing changes as they transition from childhood to adulthood”—their periods, in other words. According to the filing, some girls avoid going to the bathroom to avoid sharing it with the transgender student, “thus risking certain health problems”; they wear their gym clothes under their regular clothes so they never have to be naked at school; or they’re late for class because of the time they spend looking for an empty restroom.
As much as anything, this is an issue of body parts. If “Student A” has a penis, as the filing seems to imply, the girls may be uncomfortable for reasons similar to those that led “Student A” to ask to use the girls’ facilities.
But more broadly, this is also a question about gender roles. In a recent PRRI / The Atlantic poll, 42 percent of Americans said they believe society is becoming “too soft and feminine.” Thirty-nine percent said they believe society is better off “when men and women stick to the jobs and tasks they are naturally suited for,” including 44 percent of Republicans and 58 percent of white evangelical Protestants. These numbers suggest nervousness about fluid gender identities—and that America isn’t even close to a consensus that men and women should choose the way they act.
It’s no accident that the bathroom backlash has been framed in terms of sexual violence. If men—the putatively stronger, more powerful, and more physically intimidating sex—are allowed in women’s bathrooms, the argument goes, women will be in danger of sexual assault.
“What we’re looking at is a sex panic,” said Franke, the Columbia professor. Bathroom-based fear, particularly framed in the context of the safety of women, is not new. “One of the arguments against the passage of the Equal Rights Amendment is that it would require the dismantling of sex-segregated bathrooms, and that would be horrible both with respect to the privacy of women and the safety of women,” she said.
If transgender people are able to use the bathroom of their choice, that suggests women are perfectly safe when former men, or women who have masculine characteristics, enter their intimate spaces. “Part of the threat here is that women are saying they do not need protection from men. That has long been a source of anger for men and women who believe in this notion of female submission to male authority,” said Griffith. At least in part, “men who are supporting this are reasserting a protective role.”
Queer sex acts can be private. Queer gender expression requires acknowledgement and acceptance.
In situations like the high-school bathroom, further work-arounds might be possible. The parents in the Illinois lawsuit, for example, say they support the possibility of an alternate arrangement for “Student A,” such as providing a single-stall restroom. (Although according to the lawsuit, “Student A” was dissatisfied with this original arrangement.) Arguably, this is as much a problem of school set-up as gender. “What we have to do in the schools is to increase privacy for all students,” said Mara Keisling, the executive director of the National Center for Transgender Equality. “School lockers rooms aren’t being built anymore with wide-open dressing rooms and wide-open locker rooms. Nobody likes that. Nobody feels comfortable getting naked in front of strangers—especially teenagers.”
But there’s also a tension inherent in this conflict. “Student A” perceives herself to be female. The girls do not agree. Wilson said she empathizes with Student A’s feelings of discomfort, but “kids should have a right to choose when they are seen in a state of undress by the opposite sex, whether or not that child identifies as the opposite sex,” she said. “Many of us raise our kids to have modesty, and somebody else shouldn’t be able to come in and decide what your modesty should entail. That should be a personal decision.”
Although this particular case is a legal dispute over rights—whether one student’s claim of sex discrimination should trump other students’ claims of a privacy violation—it’s evidence that a cultural truce over gender expression might not be possible. Queer sex acts can be private. Queer gender expression requires acknowledgement and acceptance. Trans people ask to be recognized as their chosen gender in everyday interactions. Going to the bathroom may be the most obvious, because parts are exposed and people may feel vulnerable. But these interactions include everything from securing IDs to seeking medical help to interacting with employers or salespeople or friends. Being seen is not primarily a matter of legal rights. It’s cultural: the composite of a thousand moments of locking eyes with someone in a restroom mirror and feeling fear, or not.
Can Americans live divided on issues of gender expression?
On most political issues in the United States, there’s an acceptable band of opinion. Progressives and conservatives might disagree on topics like taxes, military spending, or entitlement reform, but opponents don’t typically see each other as hateful for their views.
Debates over identity, however, are not this straightforward. They are personal, and carry a moral valence. While there is arguably still an acceptable band of racism in America, it has shifted. Those who believe it is right to enslave other humans as chattel or send black people to the back of the bus are a tiny minority, and most everywhere, those views are roundly shamed and condemned. Categorically denying someone’s personhood on the basis of race is no longer acceptable in mainstream American culture.
For people who are trans, or who express their gender in non-stereotypical ways, gender is part of their personhood. When the parents and kids of William Fremd High School tell a student who identifies as female that she is a “biological male,” that is a denial of who she says she is. Many Americans think it’s fine for trans people to express their gender however they want. But as the bathroom controversies have shown, many others do not. For some, this may reflect some combination of fear or lack of knowledge. “Ignorance isn’t always bigotry,” said Keisling. “I don’t think everybody is a hateful bigot. But I wish they would go out and meet some trans people and understand that we’re spectacular, and not a threat, and I wish politicians would leave our children alone.”
And it’s true: Exposure and education may change people’s views on bathroom access. This is largely what happened with people who are lesbian, gay, and bisexual, said Brian Powell, a professor at the University of Indiana—as more Americans met gay people, gay people became more accepted. “Regarding transgender issues, we’re still at a really early stage on this, and in a very early stage of where it’s going to go,” he said. “Right now, [people] have a visceral reaction. This is not unlike people’s views about same-sex marriage from 10 or 15 years ago.”
Yet, it’s not clear that T will go the same way as L, G, and B. Transgender people make up a tiny portion of the American population—the numbers alone will make it harder for people to resolve these issues by education and exposure alone. Meanwhile, many Americans believe in the firmness of gender as a matter of conviction. They don’t see “male” and “female” as socially constructed, mutable categories, perhaps because God created them, or perhaps simply because that is what they believe. It will never be possible to completely disentangle “conviction” and “bigotry”—belief shapes prejudice, and prejudice shapes belief. But parents like those concerned about the girls’ locker rooms at William Fremd High School seem unlikely to change their views any time soon. And though their kids’ generation will likely be, on average, much more open to fluid gender expression than their parents, the lawsuit suggests that some of these beliefs are being passed to the next generation.
Gender is not going to disappear. It’s part of how people navigate the world, a shorthand for understanding others, a set of cues for reading and placing them and interpreting them. It is central to how people understand themselves, whether they’re conservative Christians or choosing to transition. Calls for pluralism fail to take this seriously—how deeply gender shapes people, and how viscerally both camps feel about its (im)mutability. Fights over bathrooms may seem trivial, but they are the logical meeting ground for this battle over the definition of gender, sitting between two irreconcilable camps on what it means to be a person.