Transgender 'bathroom bills' are a Kafkaesque state intrusion – and Republicans should oppose them

So-called “bathroom bills” are aimed at protecting women from sexual assault in public bathrooms, which supposedly justifies government action. But the “harm” that such bills aim to address simply does not exist. There have been zero reported instances of a transgender person attacking a woman in this way, despite the fact that transgender Americans have been using the bathrooms of their choice for decades without causing any problems to other bathroom users. Women, who do face sexual assault on a daily basis that is often dealt with ineffectively and insensitively by government authorities, will not get any extra protection from these laws. In fact, 70 percent of transgender people reported being the victim of discrimination or harassment when trying to use a public bathroom, and also suffer much higher risks than the general population (over 50 percent, compared to one in 6 women and one in 33 men).

So bathroom bills offer no discernible benefits. Yet the harm they cause, both to transgender people and to anyone who values personal autonomy and freedom of expression, is significant.  Think for a moment about what it means for the state to attempt to regulate this area of life. Gender expression – how we dress, act, and ask others to treat us – is a deeply personal thing, and gender identity – how we feel about and define ourselves – even more so. If we fear state interference in the way we do our jobs and raise our children, how much worse is the intrusive regulation over such a life-changing decision?

Indeed, transgender people who try to comply with bathroom bills must enter a bureaucratic minefield. In order to change the legal gender on a birth certificate in Texas, you must obtain a court order, which necessitates a letter from a doctor. To be referred to a doctor, you normally need a letter from a therapist, which adds additional time, expense and stress. After that it is standard practice for doctors to mandate that a patient to live as the gender they wish to transition to for at least a year before recommending treatment such as gender reassignment surgery. During that time, transgender people will be presenting according to their preferred gender but will be unable to legally change their gender on their birth certificate.

The law proposed in Texas would mean they are prohibited from using the appropriate bathroom during this time. But in other states, the laws can be even stricter. In North Carolina, the state that sparked it all off with House Bill 2 (a template for the Texan bill), gender reassignment surgery is a prerequisite, requiring transgender people to undergo a serious medical procedure which renders them infertile if they want legal recognition. This surgery is very expensive, usually prescribed only after a long waiting period, and many transgender people don't even want it. These are not trivial regulations to comply with if you want a government-stamped piece of paper allowing you to define how you want.

All of those hoops inevitably mean the Texas Privacy Act will impose people who look like men in women’s bathrooms, and people who look like women in men’s bathrooms. Somehow, this is meant to keep women feeling safer than they do under the current system, in which individuals quietly choose the bathrooms appropriate to them without government interference. Though liberals have taken the heat for waging the national battle over LGBT issues, they didn’t start this war on transgender bathrooms rights. Rather, a dedicated socially conservative faction has turned the Republican party into culture warriors, at an alarming cost.

Upending the perfectly acceptable status quo puts transgender people at risk, whips up anti-LGBT sentiment, and does nothing to reduce the risks of sexual assault. It is also, incidentally, economically harmful. When the Republican legislature in North Carolina decided this was a key issue to push through, consequences be damned, business began withdrawing in protest, and the state has to date lost around $400 million and over 1000 jobs.

You can argue that this issue shouldn’t be a priority for either party, as it directly affects only about 0.6 percent of Americans. I would say that laws uniquely targeting any minority group for legal discrimination are a major national issue. But even if you believe other things are more important, you should be outraged that politicians who claim to be pro-freedom think the state should regulate gender identity in this way. It is a strange ambition for people who say they believe in small government to subject citizens who only want to go about their ordinary lives in peace to such quasi-Soviet rigmarole. 

If the majority of American people really don’t care about transgender bathrooms, then why has it become a priority of the new Republican agenda? Why is the first move of Republicans in Texas under Trump to fan the flames of the culture war? And what are pro-freedom, anti-regulation Republicans going to do about it?