Devolution

New Anti-Trans ‘Bathroom Bills’ Could Require Original Birth Certificates to Pee

If you thought North Carolina’s law was bad, take a look at legislation in Virginia and Texas that would let citizens sue the government if the ‘opposite sex’ uses their restroom.

01.06.17 6:05 AM ET

Dark days are ahead for transgender Americans, and bills filed this week in Texas and Virginia are a sign of what is to come.

The bills are “bathroom bills,” requiring people to use the bathroom of their sex at birth, rather than their gender identity. They and others like them are harsher, more specific, and more targeted than North Carolina’s infamous law, which cost Gov. Pat McCrory his job. The bills represent a further iteration of conservatives’ persecution of LGBT people, and a worrying harbinger of what is to come.

In Virginia, House Bill No. 1612 was proposed by delegate “Sideshow Bob” Marshall, an arch-conservative who has also proposed a bill to declare pornography a public health hazard. It is unlikely to make it into law; Gov. Terry McAuliffe, a Democrat, will surely veto it—indeed, just this week, he issued an executive order requiring state contractors not to discriminate against LGBT people—and an earlier anti-trans bill died in committee last year.

But the bill’s language merits closer attention. First, the bill specifies that in any government building—schools, offices, public spaces—restrooms must be “designated for use only by members of one sex,” and it defines sex as what’s written on your “original birth certificate.”

That last clause is exceptionally nasty, since post-operative transgender people often go to great lengths to change their official government documentation. But the bill would require that even if a person has female genitalia and female government identification, she has to go to the men’s room.

Moreover, the bill empowers citizens to sue the government if it allows members of the “opposite sex” to use the restroom. This is mayhem. To avoid being sued, public officials would have to do some kind of screening at every restroom in Virginia—not a “genital check,” since even that isn’t enough for Mr. Marshall, but some kind of absurd birth-certificate check: Show us your papers if you want to pee.

And that would apply to everyone—in fact, I’ll wager that there are more “mannish” cisgender women like than there are transgender women. Under the pretext of solving a problem that in fact does not exist, Virginia’s bathroom bill would create massive problems that actually will exist.

In Texas, meanwhile, Republicans are gearing up for another round of intra-party conflict over the issue. Last year, we reported that anti-LGBT legislation was splitting the two largest factions of the Texas GOP: religious conservatives and pro-business fiscal conservatives. The former want to go the way of Indiana and North Carolina, which each lost billions of dollars in business by declaring their states unwelcoming to gay and trans people, harms ranging from canceled sporting and cultural events to Fortune 500 companies choosing not to open offices in the states.

Now, it’s round two. In one corner, the Chamber of Commerce, the Texas Association of Business, and the business wing of the Republican Party. In the other, Lt. Gov. Dan Patrick, who is the leading supporter of anti-trans bill, SB6, on Thursday, and an array of Christian conservatives.

SB6 is even harsher than the Virginia bill. It applies the same counter-factual definition of biological sex (original birth certificate) not only to schools and government buildings, but to all government contractors as well, including charter schools and the array of corporations who contract with the Texas state government. 

And while the Texas bill does not allow an independent civil action, it does allow citizens to file formal complaints with the state attorney general. In a chivalrous touch, Patrick’s bill only applies to women’s rooms—since, he says, “men can defend themselves.”

These bills are but a taste of what’s to come.

Last year, over 200 anti-LGBT bills were introduced in 34 states, 50 of which targeted trans people specifically. This year will surely see even more—including on the federal level, where it is unknown what bills President-elect Trump will or won’t sign, though it is well-known where his evangelical deputies, such as Vice President-elect Mike Pence and Education Secretary-designate Betsy DeVos, stand. After a few years of fitful progress, cultural visibility, and executive branch history-making, it’s now open season on transgender Americans. Bathroom bills would be ironic if they weren’t so tragic.

First, as has been documented countless times, they are all based on a lie: that men will dress up as women, say they are transgender, sneak into women’s restrooms, and assault women. Prior to this non-issue being raised, this happened exactly zero times. (Now that it’s headline news, a couple of men have gotten the bright idea and been promptly stopped.) Public restrooms can indeed be dangerous places for women and minors, but sexual predators do not need legal excuses. Nor can someone simply “claim to be a woman” as hysterical ads assert.

Irony number two: if you wanted to address violence against women, then you’d confront the masculine, conservative rape culture epitomized by our president-elect and other conservatives. In fact, however, these bathroom bills are being pushed by those same conservatives.

Get The Beast In Your Inbox!
By clicking "Subscribe," you agree to have read the Terms of Use and Privacy Policy
Thank You!
You are now subscribed to the Daily Digest and Cheat Sheet. We will not share your email with anyone for any reason

A third irony is that, at first, bathroom bills weren’t even bathroom bills. When Houston voters repealed that city’s antidiscrimination ordinance, and when North Carolina’s legislature overturned theirs, the “bathroom menace” was a scare tactic. In fact, bathrooms were one tiny sliver of one piece of antidiscrimination law. Far more important to far more people were issues like job discrimination, housing discrimination, and so on. Trans folk were scapegoated by conservatives as a way of rolling back pro-LGBT legislation.

And now the non-issue has a life of its own. The new laws in Virginia and Texas specifically single out transgender people for discrimination. As I’ve noted before, trans folk are getting a backlash without ever having had a frontlash.

Finally, and most importantly, in addressing the non-problem of cross-dressing men assaulting women, bathroom bills create real problems: putting transgender women at severe risk by requiring them to use men’s rooms, while requiring transgender men to use women’s rooms.

Both situations, if you take just a moment to think about them, are untenable. Can you imagine the absurdity and danger of non-famous versions of Caitlyn Jenner using the men’s room at a football stadium? And, for that matter, how is a cisgender woman supposed to feel when a butch, entirely masculine-presenting trans man (like, for example, adult film star Buck Angel) enters the ladies’ room?

Just check out this short video by Media Matters, featuring transgender folks who “pass” entirely as their gender. How on God’s green earth are these women supposed to use the men’s room—and vice versa?

The real sources of all this irony, in other words, are ignorance and fear. I doubt many “bathroom bill” sponsors know any trans folk personally, because all of us fortunate to have trans friends and relatives know the obvious, blinding truth that gender is not the same as sex, and that there are people born with female anatomy who know themselves to be male every bit as much as I do. (There are also many people who don’t identify with any gender, but I’m going to keep things over-simplified for now.)

This isn’t not rocket science—it’s just science, period. It’s what all the country’s medical and psychological associations, as well as millions of trans people themselves, affirm. The term “transgender” may be new, but gender non-conformity is as old as history. (Google Queen Christina of Sweden, for example.)

And that really is the point. Like climate denial, intelligent design, and other pseudosciences, the claim that transgender people don’t exist, or are mentally ill, or are dangerous, is an example of the flat-earth ignorance that one often finds on the right side of American politics of late. Terrified of changes that threaten their beloved religious dogma (even though, of course, the vast majority of Christians are LGBT-affirming and accepting), religious conservatives and the politicians who pander to them hide their heads in the sand. There’s plenty of hate behind these laws, but mostly there’s ignorance and fear.

And, of course, plenty of cynical politicians exploiting the issue—with innocent people, transgender and cisgender alike, paying the price.

Correction, 1/6/17: A previous version of this article said the Texas governor sued the attorney general, but it was Louisiana. Also, Dan Patrick did not introduce S.B. 6.