The Question Every Reporter Should Be Asking About Transgender Bathroom Bans

“How Is The Government Supposed To Figure Out A Person's Biological Sex?”

Media outlets covering the debate over transgender equality have helped amplify right-wing myths about privacy and women's safety in public restrooms. But they haven't asked Republican politicians to explain how they'll enforce laws that would require people to prove their “biological sex” at the bathroom door.

On March 23, North Carolina became the first state in the country to pass a law broadly banning transgender people from using certain bathrooms in publicly run facilities and schools. The law -- House Bill 2 -- came in response to an ordinance passed in Charlotte, which would have protected LGBT people from discrimination in housing and public accommodations.

The North Carolina law is just the beginning of a nationwide push to make it illegal for transgender people to use the public restrooms that correspond with their gender identity.

Proponents of these anti-transgender laws claim they're needed to protect women's privacy and to stop men from sneaking into women's restrooms by pretending to be transgender. As North Carolina Gov. Pat McCrory stated after signing HB 2 into law (emphasis added):

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

The idea that men will pretend to be transgender to sneak into women's restrooms has been debunked by law enforcement experts, government officials, and women's safety advocates in cities and states across the country.

But media coverage of the debate around transgender bathroom access has been dominated by anti-LGBT talking points about “privacy” and “safety.” In Charlotte, local news coverage of the LGBT nondiscrimination ordinance was largely defined by baseless fears about men entering women's restrooms.

Instead of fixating on bogus right-wing “bathroom predator” horror stories, journalists should be asking a basic but tremendously important question about Republicans' efforts to regulate public restrooms: how is the government supposed to figure out a person's biological sex?

Transgender people don't walk around with labels on their foreheads. It's impossible to prove whether someone is transgender just by looking at them. Anyone who uses public bathrooms has likely shared a bathroom with a transgender person without noticing.

But laws like North Carolina's invite politicians, business owners, and even other bathroom goers to make snap judgments about who does and doesn't belong in a restroom. North Carolina's law states that people are allowed to use only certain bathrooms that correspond with their biological sex, "which is stated on a person's birth certificate." Most human beings don't walk around carrying copies of their birth certificates, and they certainly don't bring their birth certificates with them every time they need to use a public bathroom. But under HB 2, North Carolinians will need to be ready to prove their biological sex anytime they need to use a bathroom in a public facility or school.

Other states across the country are considering “bathroom bills” that could award thousands of dollars in damages to anyone who shared a bathroom with a transgender person, creating a perverse incentive to try to seek out and accuse people who might be transgender in the bathroom.

Those kinds of laws could encourage seriously gross violations of privacy, and not just for transgender people. As Scott Skinner-Thompson, acting assistant professor of lawyering at NYU School of Law recently wrote on Slate:

If to be enforced the bills require individuals to somehow prove that their so-called “biological sex” matches the gender of the bathroom, they will be forced to disclose sensitive information about their sex and medical history. Indeed, all people--not just transgender people--could ostensibly be asked to prove their “biological sex” before using a restroom, meaning that the invasive privacy violation is not only a transgender problem.

Last March, a Louisiana woman who underwent chemotherapy and a bi-lateral mastectomy after a stage 2 cancer diagnosis was accused of being a man while standing in line to use a Walmart restroom. Last January, a lesbian in Michigan was kicked out of a restaurant bathroom because she was mistaken for a man. On March 18, a Republican politician in Fayetteville, AR, questioned a cisgender restaurant employee and asked her to prove that she was a biological woman. Under HB 2, those kinds of mix-ups could potentially become awkward and invasive legal battles.

“Bathroom bills” like North Carolina's give government officials an excuse to repeatedly police the gender of anyone who needs to use a public bathroom, even if that means forcing them to turn over sensitive personal documents or medical information at the bathroom door.

In the effort to protect women from an imaginary “bathroom predator” boogeyman, state legislatures across the country are introducing bills that will allow the government to demand proof of people's biological sex. Journalists interested in the debate over privacy in restrooms should be asking Republican politicians and their LGBT supporters how they plan to enforce laws like HB 2.