A Libertarian Argument for Transgender Bathroom Rights

Every true conservative should be in favor of transgender bathroom rights, yet it remains a stunningly polarized issue.  The reason behind this dichotomy rests in both sides using the wrong arguments.  In Tallahassee, FL on March 4, 2015, the House Civil Justice Committee passed HB 584 with a 9-4 vote.  The bill requires transgender individuals to use public restrooms in accordance with the gender they were assigned at birth, unless they can produce a legal document (like a driver’s license or passport) that proves they are legally the opposite gender.  This vote was right along party lines, with Republicans in favor of the bill and Democrats opposed to it, and would combat a previously-passed ordinance that gave transgender individuals the right to use the bathroom they choose.  Just yesterday, the bill moved forward, passing the second hurdle it needs to become law.

Republican Representative Frank Artiles used the commonly-heard conservative argument.  “Criminals and males will use [the previously passed ordinance] as the cover of law to walk into a women’s locker room and conduct … lascivious crimes.  If a police officer stops them, all they have to do is say ‘I feel like a woman today.’ ”

Meanwhile, those in favor of transgender bathroom rights were predictably emotional.  Cindy Sullivan, a 45-year-old transgender woman, stated, “You all just don’t get it.  I’m so scared of all of you.  You can put me in jail for being me.  This bill is government intrusion at its worst.” Sullivan said, “I’m not a protected class.  I’m a throw away piece of trash in this country of freedom and liberty.”

Herein lies the problem: one side argues for laws to protect safety and privacy, and the other argues that those laws victimize innocents.  One shouts “hide your kids, hide your wives!” and the other shouts “Transgender Lives Matter!”  Both sides are arguing out of fear or some misplaced sense of justice, instead of arguing with logic.

Logic dictates that criminals don’t care about signs.  This is a blatantly obvious to most conservatives, and we frequently use this argument to lambast the idiotic policy of “protecting” our kids’ schools and our military bases with a “gun free zone” policy.  If a bad guy with a gun wants to walk into a school and start shooting, a sign on the door that says “no guns allowed” is not going to stop him.  So what makes anyone think that a sign that says “Women” is going to stop a male criminal from going into a Women’s room and exposing himself, or committing rape?  The reality is that conservatives are arguing in favor of a policy that is as ineffective as  a sign that says “No Rape Allowed.”

Isn’t it true that most mass shootings occur in gun free zones?  On October 9, 2014, the Crime Prevention Research Center released a report that stated that 92% of mass shootings that occurred between January 2009 and July 2014 took place in gun free zones.  So it appears that gun free zones are entirely ineffective.  That should be, and is, the counter that conservatives use against liberals’ “protect the children!” argument for gun control.  So why aren’t liberals taking a page out of our book, and pointing out that 100% of time, when a man enters the Women’s restroom to rape her, he is disobeying the “Women’s Room” sign on the door?  And hey, isn’t rape already illegal?  It seems that the argument that a transgender criminal could get away with a violent crime by claiming that they “feel like a woman today” is not entirely accurate, as it’s pretty obvious that if you commit a crime like rape, it doesn’t matter if you feel like an ostrich today.  You still committed rape.

Here’s another argument.  As the Obama administration prepares another executive overreach to ban AR-15 ammunition because it supposedly poses a threat to police, we conservatives have vehemently quoted the Fraternal Order of Police in their assertion that the ban is unnecessary.  The ammunition has not historically posed a threat to law enforcement.  Why ban something for safety if it’s not dangerous?  Similarly, there is no evidence to suggest that criminals are taking advantage of bathroom laws to expose themselves to innocent victims in the 13 states that have passed such “transgender bathroom rights” bills.  By now, conservatives who are genuinely concerned about safety should be on board with transgender bathroom rights, or at least shouldn’t be arguing in favor of illogical, unnecessary laws that fail to protect the population.  Conservatives who believe that government is only there to protect us should be on board with blocking a bill that would increase government intrusion in our lives with minimal results.

But there are also conservatives who are more concerned with privacy than safety.  They don’t want their young daughter inadvertently exposed to a transitioning transgender woman’s anatomy.  That’s perfectly valid.  In fact, past Florida laws have already taken steps to treat closed stalls and the open area of the public restroom as different locations for indecent exposure. (See U.S. v. A Naked Person Issued Notice of Violation, 841 F.Supp. 1153 (M.D.Fla. 1993) & Hoffman v. Carson, 20 So.2d 891 (Fla. 1971)).  If this is a genuine concern, then why not focus on clarifying those laws to explicitly state that the open area of the public restroom counts as a “public place” where indecent exposure is prohibited?  Certainly, our Constitutional, inalienable rights to life, liberty, and the pursuit of happiness, include our right to privacy.  If indecent exposure is prohibited in the open area of restrooms and lockers for any individual, then any person–transgender or not–who exposes his or her genitalia is committing a crime.  Individuals in all locker rooms would be required to wear undergarments at a minimum, and could only remove them in private stalls.  And as a matter of good business practices, not a matter of government regulation, someone should never lose a gym membership for bringing safety concerns to management, as happened to a woman recently who reported a “male” in the women’s locker room at Planet Fitness.  If there is an incident, then the individuals involved should work it out with management like reasonable adults.

We libertarians believe that people can rule themselves, and that government is only imposed in order to protect life, liberty, and the pursuit of happiness.  There is no evidence of danger arising from letting transgender people use the bathroom they want to use.  Logic would have it that even if a transgender woman did want to expose herself to or rape a little girl in a restroom, that a law saying she can’t go in the Women’s room is not going to stop her from doing so.  On the other side, transgender individuals do not have a fundamental right to not be offended–and neither does any other group.  But individuals do have a fundamental right to privacy and to protect themselves from harm.  If a woman feels threatened by an individual she thinks is a man, she should never be punished for reporting those feelings.

This is not an emotional battle. It is a legal one. The government doesn’t have the right to do things to us unless it is protecting our lives, liberty, or pursuit of happiness. Since in this case they’re doing none of those things, they should butt out.  Both sides need to step away from the emotional, fear-based arguments and look at this issue through the lens of true conservatism.  If they do this, they will find that the transgender bathroom rights movement presents a perfect opportunity to exercise minimal government control and maximize freedom.

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4 thoughts on “A Libertarian Argument for Transgender Bathroom Rights

  1.   Common decency demands that men stay out of women’s restrooms, dressing rooms, and such, and that women stay out of corresponding men’s facilities.

      I must take issue with your statement that conservatives ought to go along with what is very blatantly indecent and immoral.  Indeed, as your own article seems to point out, it is a defining difference between conservatives and liberals (or at least between Republicans and Democrats) that the former tend to stand for decency and common sense, while the latter tend to stand for madness and evil (such as letting perverted men into women’s restrooms).

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    1. Bob, you’re certainly entitled to your opinion, but this is a legal argument, not a moral one. This has absolutely nothing to do with whether transgender people are “men” or “women,” and everything to do with what the government has a right to do to us and what they do not. They do not have a right to enforce laws that are ineffective and do not make us safer. This is one of those times when the laws are not making us safer. However, as I suggested in the article, it makes total sense to place more stringent restrictions on indecent exposure in the open area of restrooms and locker rooms. This would make it a crime for any person, transgender or not, to expose his or her genitals outside of a closed stall. This would prevent accidental indecent exposure. As pointed out before, criminals will ignore the law anyway, so if someone wants to expose their genitals on purpose, they are going to do so regardless of what the law says. But if your concern is about privacy and accidental exposure, then a law restricting the open area of public restrooms and locker rooms would seem to do the trick.

      Thanks for taking the time to comment! I really appreciate it!

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  2. Hi Morgan,

    I found your thought process provoking and proper. You are correct, there is to much emotion around and issue that logically is a law that should not be passed. I think it is hard for a person whom rights may be stricken, or a parent who truly believes their child should be protected from outside influences for them to not be emotional.

    I prayed hard on this issue and God showed me a view of the future where we were all having to show our IDs to each other. The problem he showed me with this was that many criminals, identity thieves, stalkers, etc. can use the name, address, and birthdate on those IDs to harm us. You argument about public safety being paramount with minimal government intrusion, made me feel confirmed with you stance, that this will not make good law.

    The other issue I struggle with is Religious Freedom, the Mormon News Room did a good video about Religious Freedom and the need to protect it. I think it is important that people be allowed to practice their faith. The concern is when another’s faith can exert power over someone else. We had a protest in Iowa State House over Wiccan prayer. Can Freedom of Religion using Denial of Service be used to pressure minor faiths? How would you argue for a balance between ones faith, and public services?

    Sincerely,
    Cindy

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    1. Cindy, thank you very much for your thoughtful comments. I think you may enjoy my article about this issue, regarding how the free market might be used to help balance religious rights and public service. I believe that religious freedoms are paramount to a civil society, and that means that no one can tell individuals what they can and cannot believe, nor infringe on their free exercise of such. When everyone is free to act according to the dictates of his conscience, then the result is a free market, where good ideas are bought or sold, and bad ideas are ignored. https://mkgilmour.com/2015/04/01/the-free-market-a-fix-for-almost-anything/

      If you are LDS, you may also enjoy this article about how these ideas of libertarian freedom intersect well with Mormon theology. Enjoy! https://mkgilmour.com/2015/03/24/choose-the-right-how-libertarianism-and-mormonism-intersect/

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