The new transgender panic: “Men” in women’s bathrooms

Originally published March 31, 2016

The “transgender panic” is often deployed by defendants in cases where someone has murdered a transgender woman. Romantic advances or sexual intimacy are usually involved. Like the “gay panic” defense, Cynthia Lee and Peter Kar Yu Kwan point out in a 2014 law review article, the defense is calculated to appeal to the jury’s own biases. As a result, in some cases a first degree murder charge may be rejected in favor of lesser charges: second-degree murder or even just voluntary manslaughter. They explain this “provocation defense is based on the idea that certain extreme circumstances might cause the average person to lose his or her self control and react in a fatally violent way. If the provoked killer’s loss of self-control is something that an ordinary person in the same situation might experience, the provoked killer is considered less culpable than the average intentional killer, and therefore deserving of some mitigation.”

It’s not clear if the majority of “ordinary persons” hold this view, but certainly many people do: a law professor doing a training on transgender issues for social service providers was told by one of the attendees: “What I think is a problem is that these transgenders lie and say they’re women to get with some man, and then he’s got to beat them up” (page 97 of the law review article linked above). In 2014, California banned defense attorneys from invoking the trans panic defense, the first state to do so.

Of course, what animates this logic is a particular cultural trope–the shock of a penis appearing where it is not expected (e.g. Neil Jordan’s 1992 film The Crying Game).  In the trans panic defense, the context is sexual intimacy.  Now, with the recent surge of anti-transgender bills, that trope has migrated from the bedroom to the bathroom. The new rallying cry, from the group that successfully campaigned against Houston’s Equal Rights Ordinance to the legislators in North Carolina who passed a bill mandating that individuals use the bathroom that corresponds to the sex indicated on their birth certificate, is “No men in women’s bathrooms.” And, for these legislators, by men they mean people with penises.  And people with penises in women’s bathrooms will, naturally, provoke justifiable violence in response. Says North Carolina State Senator David Brock, “You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are there.”

The legislation (PDF) was passed in a special emergency session on March 23rd.  Legislators had to act fast, they explained, to override a new human rights law passed by the city of Charlotte which would have gone into effect on April 1st. Charlotte’s new law included gender identity and gender expression, and, significantly, removed a sex-based exemption from their existing human rights law. Previously, the prohibition against sex discrimination would not apply to restrooms, showers, bathrooms and similar facilities. By removing that section and explicitly including gender identity, Charlotte legislators signaled that access to sex-segregated facilities would be based on gender identity. Another senator described the urgency thus: “Lawmakers were forced to come back to session to address the serious safety concerns created by the dangerous [Charlotte] ordinance…which…created a loophole that any man with nefarious motives could use to prey on women and young children.” That there have been no documented cases of transgender people assaulting women or molesting children in bathrooms did not matter to the legislators.

Five days after the bill became law, the American Civil Liberties Union and Lambda Legal Defense and Education Fund filed suit against it, arguing that the law violated the “constitutional and statutory rights to equal protection, liberty, dignity, autonomy and privacy” of LGBT people in the state. (The law also invalidated protections from discrimination based on sexual orientation.) In the original filing, the lawsuit’s plaintiffs include two transgender men who both have birth certificates designating them as female. By choosing to feature to transgender men, the lawsuit shows that it’s the legislators who have created a situation in which men will use women’s bathrooms, not the Charlotte ordinance. (The quotes from the legislators can be found in the lawsuit.)

I understand the strategy: pointing out the unanticipated effects of using “biological sex” as the proxy for gender. Both the transgender men plaintiffs are taking masculinizing hormones. And their secondary sex characteristics (such hair growth on the face, hair loss on the head, musculature, voice) are going to make them seem very out of place in a women’s room.

(Another unanticipated effect of the law, not pointed out in the lawsuit: North Carolina does require genital surgery before one’s birth certificate can be changed but an ever-increasing number of other states do not. That means that some people will have birth certificates with a gender marker that matches their gender identity without having such surgery. As of now, legally in North Carolina, a trans woman who has not had genital surgery but has had her birth certificate amended in another state will, for the first time in US history, have an affirmative right to use the bathroom that corresponds to her gender identity.)

No doubt poking holes in this bill is fun, it’s deconstructive, it shows the impossibility of having the legal category of “sex” or “gender” do the work many want it to, when every jurisdiction, every agency, can have its own rules for re-classifying sex. (This is one of the subjects of my book manuscript, now only six years overdue.)

But is simply identifying inconsistencies enough? In an essay on the contradictory politics of conservatism in Britain, Stuart Hall argues, “in our intellectual way, we think that the world will collapse as a result of a logical contradiction: this is the illusion of the intellectual—that ideology must be coherent, every bit of it fitting together, like a philosophical investigation.” Merely highlighting contradictions does not inevitably destroy the political and regulatory work that installs and arranges difference. Pointing out the impossibility of securing gender to the body in a perfectly transparent universal binary will not necessarily conjure away deeply rooted common sense notions of gender’s relation to the body,  or its equally deeply rooted imbrication in race.

The governor and the legislators are not likely to back down in the face of these inconsistencies. To wit–when Governor McCrory was presented with the situation of a transgender man, one of the plaintiffs in the lawsuit, being forced to use a women’s bathroom, he responded: “You know, we all have to make adjustments in life.” But what exactly would those adjustments be? To be realistic, most transgender men aren’t going to be able to use women’s bathrooms, even if the law gives them the right to do so. Tobias Wolfe spells out what “adjustments” really means in the Nation: “The only way these ‘bathroom bills’ make any sense is to imagine that they will make trans people cease to exist altogether. Supporters of these laws don’t want trans dudes to use the ladies’ room or trans women in men’s rooms. They want to exile trans people, exclude them from the public square, cast them out to some faraway place.”

The whole point of the lawsuit is to move the battle from the legislature to the friendlier terrain of the Obama administration and the federal courts.  With regard to schools and colleges, the new state law clearly contravenes federal interpretations of Title IX. Perhaps eventually a federal court will find that the law governing bathrooms in state agencies runs afoul of the equal protection clause–though the district court judge assigned to the case is rather conservative.

But what about the larger political situation–the rush to pass these bills, the revanchist moves of state and local Republicans to re-prosecute the culture wars by fomenting transgender panics?  And let’s not forget the penis. It’s telling that no transgender women were among the named plaintiffs.  By leaving them out, the legal groups skirted around the crux of the controversy. That may be a reasonable legal strategy, but it’s not a political response to a raging conservative anti-trans agenda.

Nor is it a response to the violence wrought upon trans women. Some of that violence is made possible by the same ideas about gender that make the trans panic defense seem reasonable. In 2015, twenty-one trans women were murdered in the United States, and most of them were women of color. And there are probably many many more of these murder victims, who remain uncounted because police departments do not identify them as trans or whose murders are not investigated because authorities and communities consider these lives disposable. At some point, the LGBT movement must stop colluding in the erasure of those lives and find a way to confront the virulent, entrenched misogyny and racism directed as these women. Even in the relatively antiseptic context of impact litigation, the movement could use this litigation to open rather than avoid the question of what underlies the hostility directed at trans women.