Yesterday, Loretta Lynch broke it down for the United States. By “it,” I mean HB2, the state’s Public Facilities Act (aka the Bathroom Bill). She called truth on the legislation’s impact, referring to the requirement that in public facilities, people must use the bathroom that corresponds with the gender they were assigned at birth (which for most of us on this planet, was assigned by someone whose intentions notwithstanding, were undoubtedly limited by incorrect and incomplete knowledge about what comprises gender identity, and just how fluid gender is in the structures of our very bodies and brains), by stating that the law itself and any enforcement of it is “impermissibly discriminatory.”
I love that language: impermissibly discriminatory. Because it illuminates a truth: any society is susceptible to discriminatory practices and systems because discrimination stems from bias, which is an innate human inclination to prefer some things, experiences and people over others. While we can’t help being biased, we can choose whether or not to discriminate, which is to act on our biases to advantage or disadvantage others. And herein lies a murky truth: communities and institutions, even the most social justice-oriented of them, tend to harbor, and even act on, permissible biases. That is to say that any group has biases and discrimination that it opposes; the twinned fact is that the same group probably has biases and discrimination that it permits, whether it’s discrimination against people who are perceived to be too old, too conservative politically, too black, too gender-nonconforming or too “other” in some other way that isn’t valued.
And sometimes discrimination isn’t just permissible; it’s bona fide. This is no doubt part of the logic behind HB2: it is legitimate to discriminate against transgender individuals in this case because restrooms are designed to separate two groups: biological men and biological women.
But this rationale is flawed, as Lynch points out. The point of separate restrooms for “women” and “men” has not been, to my knowledge, to discriminate against any group (unlike restrooms “For Whites Only”), but to provide facilities for all of us “to engage in the most private of functions in a place of safety and security, a right taken for granted by most of us.”
So the question is really: how do we provide safety and security for more of us, now that we know the current system, based on a false binary, only serves some of us? And not even all of us–“us” in this case being cisgender folks: teasing, harassment, bullying and violence is all too familiar already in the cisgendered bathrooms and locker rooms that HB2 strives to protect. (And here, a Megyn Kelly moment to debunk the presumed threat of transgender folks preying on cisgender children in public restrooms. This is Kelly interviewing NC Governor Pat McCrory: “[T]here is a misconception that transgendered are somehow molesters, and they’re not. That’s not true. Typically male molesters are heterosexual and if they want to sneak into a bathroom, they’ll do it. But in 90 percent of the cases, molestation happens with someone you know. So what is the fear about the transgender situation in bathrooms?”)
In naming that bathroom safety is “a right taken for granted by most of us,” while others have “suffered far more than [their] fair share,” Lynch gets to the heart of the issue with HB2: privilege. This is not about accommodating a minority, or violating the rights of the majority for the sake of a few: this is about deciding what rights and privileges we think people ought to enjoy, recognizing whom our current systems have served best and not so well, and discerning how to extend the reach of those privileges by rethinking our means with clarity about our ends.
Of course, it’s not just North Carolina that has its work cut out for it: schools, camps, churches, temples and other organizations that offer traditional gender-binary housing/overnight accommodations for students and adults as part of their programs (for a class trip to DC, camping trip in Yosemite, overnight retreat or boarding for the academic year). And then there are sports teams, sex ed classes (which are still sometimes conducted by gender-affinity of students), overall admissions (whether a co-ed institution is seeking to “balance” genders, or a single-gender organization uses gender identity as a criterion) and, yes, bathrooms. If the purpose of these programs is education in developmentally safe occasions, then we need to advance the current, dominant system of accommodation by request, which requires that an individual who identifies outside of our assumptions and norms have the self-awareness, sense of safety, tools and language and agency to self-advocate. We need to move towards Lynch’s vision of fair, shared responsibility for inclusion and equity, which means presuming diversity, instead of just reacting situationally to it.
It also means recognizing that however I identify my gender, HB2 is my issue. Because I can’t afford to just care about the issues that trigger systemic disadvantages for me, and turn a blinded-by-privilege eye away from those issues that facilitate systemic advantages that I enjoy. Why not? Because that’s the way we lose not just our social fabric, but the very intricately woven fabric of our selves.