This Transgender Bathroom Issue Has Made Hypocrites of Us All

1.
When Facebook asked me for my political affiliation, however many years ago, I put “moderate.” Though I hold a lot of conservative values, and the philosophy that undergirds conservative ideology makes intuitive sense to me, a lot of Republican positions run contrary to those values and I’ve had trouble finding politicians that consistently embrace similar views to my own. The landmark essay “A (Conservative) Case for Gay Marriage” was penned by gay conservative Andrew Sullivan in 1989 and went largely ignored until it was dusted off last summer to help Republicans cope with the Obergefell decision. I’d made my own (conservative) case for gay marriage while in college. All that to say, the philosophical foundations were there, but the marriage between conservative philosophy and Republican ideology has long struck me as a loveless one.

It’s not as though I found liberal ideology fit me better. As I learned more about Jonathan Haidt’s moral foundations theory, I was better able to put into words the discomfort I had with liberalism. According to Haidt, there are five key moral foundations: Care/harm, Fairness/cheating, Loyalty/betrayal, Authority/subversion, and Sanctity/degradation. “In this analogy,” he says in his book “The Righteous Mind, “the moral matrix of a culture is something like its cuisine: it’s a cultural construction, influenced by accidents of environment and history, but it’s not so flexible that anything goes. You can’t have a cuisine based on grass and tree bark, or even one based primarily on bitter tastes. Cuisines vary, but they all must please tongues equipped with the same five taste receptors. Moral matrices vary, but they all must please righteous minds equipped with the same … social receptors.” (For the record: comparing something to food is one quick way to get me to take an idea seriously.)

Haidt’s key observation was that while conservatives hold each of these moral foundations in roughly equal importance, liberals emphasize care and fairness far above the other three. The Black Lives Matter movement is almost a perfect case study for this theory: those who embrace it use “fairness” language; those who critique the movement almost invariably make an appeal to the importance of authority. This should not, in itself, be read as a critique of Black Lives Matter. Sometimes sweet and sour, combined in precarious balance, form a transcendental flavor. But just as I don’t want to only eat sweet and sour foods the rest of my life, I can’t completely eschew the values of loyalty, authority, and sanctity.

2.
This has all been prelude to the main idea, which is the baffling disagreement about the bathroom ordinances currently in contention, most notably North Carolina’s HB2. Outrage over the signing of the law has been swift and loud, of course, with businesses and governments staging boycotts of the state of North Carolina. And while I agree with Governor Pat McCrory when he says that there has been a “vicious” smear campaign miscategorizing components of the law, that doesn’t mean I think it’s a good law. In fact, I can think of no compelling case to restrict transgender men and women from using the bathroom they feel is most appropriate to use.

But – yet again – this does provide a fantastic case study for Haidt’s moral foundations theory. Proponents of such restrictive bathroom laws such as HB2 are reacting to encroachment of their “care” and “sanctity” foundations, while opponents are responding to the “care” and “fairness” modules:

a) The mainline argument in support of HB2-type laws argues that when we rely on the subjective standard of personal gender identity, there will be nothing stopping rapists and other sexual predators from insincerely using personal gender identity to gain access to women’s bathrooms and locker rooms. At that point, it is argued, they will have better access to victims. To phrase it in care language, someone might reasonably say, “I care about the women and children in my life, and without these laws they are at greater risk to sexual predators.”

(I also suspect that many people perceive transgenderism as a threat to the sanctity of the “male” and “female,” at least in a more traditional formulation of gender. But until people are free to discuss those ideas openly and without being labeled bigots, the principle of charity dictates we should restrict ourselves to considering the strongest form of the arguments actually being set forth.)

b) In a similar way, opponents of HB2-type laws are simply saying, “I care about the transgender men and women of the world, and it is unfair that they should have to face the “othering” and discrimination that comes with having to use the wrong bathroom. They face enough challenges as it is.” I find it prohibitively difficult to brush aside that argument.

Tim Keller said in “The Reason for God” that if you can’t formulate your opponent’s argument in a way that he or she would agree with, you can’t actually claim that you disagree with them. Similarly, Daniel Dennett has said, “You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.’” I hope either position would accept my characterization of their position. If not, that’s what the comments section is for.

3.
I suppose it should not be surprising that this controversy has made hypocrites of us all.

Let me start with liberals. Do you not see the baffling contradiction in the fact that you’ve been yammering on and on about rape culture, that you’ve been parroting statistics about the threat that women face daily and in accumulation over the course of their lives, but when it comes to public bathrooms and locker rooms, you’re suggesting that the threat of rape is no longer real? Do public bathrooms have a magical property about them that prevents sexual assault? I’ve heard women complain about being ogled at the gym, or at bars, or in restaurants. Acknowledging that there are men who don’t respect your agency and privacy enough to leave you alone when you’re on the treadmill, what makes you think they won’t likewise ignore the spirit of transgender-inclusive spaces? From a sheer, raw numbers perspective, do you honestly believe there are more rapists in American or more transgender men and women? The fear of increased risk of rape is real.

Or maybe you’re just trying to say you don’t like anti-rape measures when they unfairly hurt innocent people. Please, tell me more.

Conservatives aren’t exactly paragons of self-consistency on this issue, either. In fact, I think they’ve got it worse.

Conservatives, isn’t one of the big arguments in support of gun rights the idea that criminals, by definition, don’t care about breaking gun laws? What makes you think that sexual predators have cared about violating the sanctity of public restrooms? Since we have a plethora of examples of such men doing just that, why would we expect to see a flood of new cases? If you weren’t seeing a statistically significant risk of being assaulted in a public restroom before, there is little reason to expect that to change.

With respect to your children, were you really sending your six-year old to the bathroom by his- or herself? According to the Rape, Abuse & Incest National Network (RAINN), four fifths of rapes are committed by someone known to the victim, and 70% of rapes take place within a mile of the victim’s home, in the victim’s school, or at the residence of a friend or family member. The increased risk of bathroom rape is overblown (1). When RAINN says, “The perpetrator is not hiding in the bush,” they might as well be saying, “The perpetrator is not hiding in the bathroom.”

Besides, aren’t you guys the ones typically complaining about the expanse of the “nanny state”? And now you’re saying it’s the government’s job to mitigate the risk of rape of your children via bathroom regulations? That doesn’t really add up, either.

I suspect businesses will be intelligent about how they manage this situation – and it seems to me there is ample room for compromise. Target stores, for example, have gender-neutral family bathrooms. The Gap and Banana Republic stores have gender-neutral changing rooms, typically in a single row. Perhaps larger stores can implement a panic button (or such buttons in each stall) that will alert security of particular threats. I think an innovative solution will eventually win out. That is, if we can find a way to give each other the benefit of the doubt and offer some understanding for the real concerns of both sides.

 

(1) You may have noticed that I claimed both that the fear of more rapes is both real and overblown. And yes, on the surface, this is a paradoxical statement. But it’s like shark attacks: the odds of being attacked by a shark are incredibly low, and not a significant-enough risk that they should deter would-be swimmers. But attacks do still happen, and they are gruesome to witness. That is, the fear of shark attacks is real, but the risk is overblown. Especially when you’ve just been watching Jaws.

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