Do Bathrooms Matter? Revisiting “The Bathroom Problem”

Target rainbow bullseye

On the heels of North Carolina’s recent decision to require transgender people to use public restrooms that correspond to their identified sex at birth, Target has just released a new policy indicating that transgender people may use restrooms in its stores that correspond to their present gender identity. While this initiative has received strong support from many corners, it is also not without controversy; most notably, the American Family Assocation (AFA) has called for a boycott of Target on the grounds that this policy “endangers women and children by allowing men to frequent women’s facilities.”

With these claims in mind, there is some importance to my inquiry in doing a bit of fact-checking. As the evidence suggests, transgender people are no more likely to be sexual predators than anyone else, and yet as a group they experience disproportionately higher levels of discrimination and harassment in public venues (and in bathrooms, in particular). Moreover, in response to those who claim that Target’s policy will invite sexual predators of all gender identities into bathrooms, the data indicates that people are no more likely to be attacked in a bathroom than anywhere else, rendering most of the safety arguments relatively void.

With that background, then, I want to consider why the present controversy over the bathroom is not just a random symbol. For those of us familiar with Jack Halberstam’s now classic commentary on what s/he calls “the bathroom problem,” this is old territory, for as Halberstam was pointing out in the 1990s, the bathroom is the cultural line in the sand: it remains one of the very few realms where a binary expectation of sex distinction remains the gendered norm.

Indeed, the bathroom is the presumed litmus test in biological sex. But there is quite an irony, Halberstam notes, for while we may say that the debate over the bathroom is about grouping certain types of bodies together for the sake of privacy, safety, or the like, this is an empty argument on several accounts. Because we tolerate all sorts of different physical manifestations of “male” and “female” (everything from short hair to muscles on some women and the long, lanky physiques of certain men), it’s difficult to say that any of us really expects perfect physical conformity. Even those who argue that this is a discussion about viewing the genitals of others may have forgotten that women’s bathrooms (the presumed site of the AFA’s complaint) are almost universally outfitted with stalls.

If hardly any of us actually physically represent our culture’s gendered ideal, then the topic is not one of visible diversities (for again, we tolerate an array of appearances), but how certain groups create psychological and even physical control over others who do not reify their system of social classification. To put it differently, the bathroom problem isn’t about the bathroom: it’s about how to demarcate those who violate the boundaries of “acceptable” difference and what stories we must manufacture (such as the “bathroom predator” myth) in order to cast difference as deviance. As Halberstam (and countless others) have described, even if one is not transgender, there is tremendous danger — to the point of violence — in using the restroom if one’s appearance is too gender ambiguous. That fact that virtually all groups freely tout their love of diversity (but their hatred of deviants) reveals the way in which diversity is not a synonym for difference as much as it is a term that designates a political strategy for difference management.

So while it is perhaps tempting to see this as a ridiculous argument about something as petty as “the facilities,” it is important to remember that the bathroom is a critical site of social worth in a very concrete way. The ability to move freely in public, to wield some power over the classificatory schema that determine one’s identity, and to attend to the basic needs of one’s body are all critical ways in which we become legible — and thus powerful — parts of our culture. The inability to do any one of these things is a marker not simply of difference, but of systemic marginalization.

2 Replies to “Do Bathrooms Matter? Revisiting “The Bathroom Problem””

  1. Totally great piece, LDS!

    I have only one quibble, meant as a friendly correlate to your comments on “the facilities” as a site of ongoing interpellation of subjects, and contestation of public agencies.

    HB2 doesn’t actually, as you (and everyone from FOX to NPR continues to) suggest, “require transgender people to use public restrooms that correspond to their identified sex at birth.” At least as I read the bill, that is.

    Interestingly, as an actual piece of legislation, HB2 does not place any actual requirements on transgender or any other individuals using bathrooms in North Carolina. Unless I missed something when reading it, I think that no provision of the law is written so as to directly govern any actual users of bathrooms.

    What HB2 does do is address state employees with responsibilities to manage facilities (people like school administrators, operators of rest stops, etc.); it requires these facility managers to designate all multi-user bathrooms as “single-sex only;” and for the purposes of this regulation of the rule makers, it defines “sex” as “biological sex,” which it further defines as the gender indicated on the birth certificate. Violations of HB2 can only happen at this level, of how public bathrooms are designated.

    As written HB2 assumes that there is a problem with mayors and legislators and principals and other administrators who might want to embrace other bathroom signs and rules. It seeks to control and limit their power to categorize restrooms themselves, and set policies for their use. In other words, it was directed at the people running municipal governments and school districts in places like Charlotte and Asheville, where “progressive” policies might challenge traditional approaches to bathroom rules.

    The bill apparently assumes that people will continue to comply—as they always seem voluntarily to do—with posted gender designations for public facilities. For it provides no enforcement provisions at all regarding how properly designated bathrooms actually are used in practice. There’s no fine or other penalty associated with failing to observe the posted signs and policies that the law requires. Whether other aspects of NC law do provide such enforcement, I have no idea. But if they do… they were already on the books; and anyway I’ve never ever heard of such a law being invoked or enforced in NC or anywhere else. Popular habitus is what enforces the policies; regrettably that popular enforcement of the rules includes the kind of violent assaults that you mention, that are sometimes perpetrated against people who bend the rules of the categories.

    In other words, HB2 governs public metapragmatics of bathroom designation (directing responsible persons to put certain signifiers on certain doors, and to adopt certain policies for their facilities) rather than taking aim at the pragmatics of bathroom use.

    Thus, the reactions of Target, and scores of other “private” corporations that have spoken out against HB2 or taken punitive or other counter-policies, etc., are just a part of this complex game of gender metapragmatics.

    (I recall that Target has already taken up a definite position in this landscape, after it controversially decided to de-gender its toy aisles last summer— —I’m not sure they went through with the plan, though.)

    To my mind these observations only strengthen your piece because it’s useful to remember that the real issue is gender trouble, i.e. the stakes are the complex ways that we construct and enforce gender, not about “bathrooms” per se. The bill is about dominance through categorization and definition.

    Finally, and to my mind very interestingly, I have discovered since HB2 passed that NC is one of those states in the union where a transgender person can have the sex listed on their birth certificate legally changed, provided that they have a medical doctor certify that they have undergone sex reassignment surgery. This is a legally simple procedure (though one not available, of course, to all persons at all stages of lived experience). HB2 does nothing to change to that aspect of NC law, and thus for the many Transgender people who have taken the trouble to transition “all the way,” using both medicine and law, HB2 changes nothing, since their continued use of single sex bathrooms aligned with their gender identity would not cause them to violate any of the rules that are required for public bathrooms!

    I don’t mean to minimize the impact of HB2 by pointing this out, but rather to suggest that its actual impact and power is rather different than many people think.

  2. Thanks – some interesting insights, indeed! I was unaware of the ability to literally change one’s birth certificate sex. And ye, the sticky wicket of enforcement of HB2 is an interesting one, especially now in light of the public attention.

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