by Daniel A. Kaufman

The clusterfuck that is the Indiana “bathroom bill” (and every other similar piece of legislation) has drawn a lot of negative attention to some pretty terrible people, which, I guess, is a good thing, but it also has brought to light a number of confusions that seem to surround issues of sex, gender, and segregated environments; things that we are going to have to figure out, regardless of what happens with these stupid bills.  I have no particular investment in how they are sorted out, and I am inclined to let those for whom these issues have the greatest import – meaning those who are transgendered — lead the way, but the issues will have to be dealt with or this kind of horrible legislation is just going to keep on coming.

First, let’s put to rest the nonsense about “predators.”  There is zero evidence that transgendered people are more likely to prey on people in bathrooms than anyone else.  (Intuitively, I would think them less likely to do so.)  “But it’s not them, we’re worried about!” the members of the potty patrol cry.  “It’s the non-transgendered predators, who figure out that if they just put on a dress and go into a ladies room, they can molest little girls!”  The wildness of this suggestion boggles the mind – some fat, hairy, molester in a dress trying to walk into a ladies room – but regardless, the notion that such people will be deterred by a law like this seems rather absurd, which makes me suspect that this move is disingenuous and that the real target is the transgendered themselves.

So enough with the dumb, mean-spirited legislation.  What about the issue itself?

I must admit that I always was under the impression that bathrooms were sex-segregated, not gender-segregated, so the issue surprised me a bit, when it first hit the newspapers.  If we’ve been told anything about sex and gender over the last thirty years or so, it’s that they are not the same and that the first is a matter of nature and the second is a matter of social construction.  The presence of urinals in men’s rooms and their absence in ladies’ rooms would seem to suggest that the relevant segregation with regard to toilets is with regard to sex, not gender – certain body parts going with certain kinds of bathroom fixtures.  One might be a man, in every observable, behavioral, and psychological way, but no dick, no urinal.

There’s another thing that seems like it might not quite line up.  If we are to accept the idea that bathrooms should be gender- rather than sex-segregated, then I don’t see how there can just be two types of bathrooms.  For we also have been told that there are more than two genders and in some quarters, the alleged number is in the dozens.  (Facebook, famously, has fifty-six or so gender categories, with which one can identify.)  Are we seriously supposed to contemplate having three, four, six … twenty different kinds of bathrooms?  Such a proposal seems not just impractical but weird and yet, it follows directly from the multiplicity of genders and the proposal that we segregate bathrooms by gender, rather than sex.  How, after all, would one explain to those whose gender is other than male or female that they will have to make use of one of two gendered-bathrooms, neither of which they identify with?

This might sound like I am suggesting that we return to the notion of sex-segregation, which, of course, is the potty patrol’s aim, but such a move is obviously undesirable and in any event, unworkable.  The problem is this:

This gorgeous girl has male genitalia.


And this handsome guy has female genitalia.


Can anyone seriously suggest that it would be anything other than tremendously disruptive for the first person to walk into a men’s room or for the second to walk into a women’s restroom?  And can anyone seriously suggest that the sorts of folks pushing for this crazy legislation would be happier if this happened?  Of course not.  They would be the first ones to scream bloody murder if it did, despite the fact that it is precisely what is entailed by what they are proposing.

This started me wondering why we segregate bathrooms at all, and I’m starting to think that there really aren’t any good reasons.  I know that in my own case, there’s something vaguely humiliating about the thought of pooping right next to someone whom, in principle at least, I might desire sexually, and I suspect that this is true of many if not most people who care at all about bathroom segregation.  Of course, this is an infantile, primitive sort of consideration, one that doesn’t reflect anything serious or deep and which can’t sustain any sort of rational scrutiny.  Notice also that it is based entirely on superficial appearances – on what people look like at first glance – which is all that one is ever going to get, passing by another person on the way to the toilet stall.  I mean, it’s not as if we expose our genitals to each other, before going in to do our business. Still, we are not entirely rational beings and this stuff does bother a lot of people, so it will have to be dealt with, which means having some sort of rule that addresses peoples’ irrational discomfort in this area.  (Ideally, we would just eliminate segregated bathrooms altogether and make them all unisex, but I just don’t see this happening across the US, anytime soon.)

A rule that would serve all of the relevant interests – both the substantial, rational concerns of the transgendered and the not-very-substantial, somewhat irrational concerns of the rest — could go something like this:  Male bathrooms are for people who superficially look like typical men and Female bathrooms are for people who superficially look like women.   Yes, there is the matter of the urinals, but this is simply an accidental result of the fact that when this system got established, no one was making the sorts of distinctions that we do now.  In any event, as a matter of practical effect, it is irrelevant.  The girl pictured above will simply go into the stall in the women’s room to urinate, and no one will know the difference, and the guy will use the stall in the men’s room to do the same, with similar non-effect.

Of course, this does not solve the problem with the other-gendered, in which the appearances are less obvious or clear, but I don’t see how any law or formal rule will ever be able to address that.  It will have to remain a matter of family resemblances.  Look sufficiently enough like a guy?  Use the men’s room.  Look sufficiently like a woman?  Use the ladies room.  Look sufficiently like either one?  Use either one.

The non-transgendered are just going to have to get over it.  We’ll all survive.  Even the assholes pushing for the legislation in Indiana.






15 responses to “Provocations”

  1. mpboyle56

    I must say, this little essay is a more clear-headed and practical discussion of this issue than any I have come across. It will not satisfy purists on either side, but it illuminates some key points I hadn’t considered. Grazie!

  2. Hi Dan, I am thrilled to be on a site that manages to work in Bailey Jay during a serious discussion of topical import (and am impressed you managed to stump me who the other person is).

    The obvious solution is that we end bathroom segregation and get with the unisex toilets already. Then again, I am admittedly emotionally unready for such a move.

    Last year I was at a conference in France when I discovered (too late) that the bathrooms at the location were unisex. The girl and I that discovered this together (again too late) found ourselves looking at each other like mutual deer caught in the headlights. We shrugged it off, along with nervous laughter, but I made sure not to use it again while anyone I found remotely sexually interesting (or worked with) was in there. It is stupid and irrational… but it’s in me.

    Then again it is more related to non-urinal issues. Intriguingly where I live pissoirs (public urinals) are all over the place, they even have popup ones so guys can go (and I have) with crowds of people walking around. Hell, you can be right in front of a restaurant pissing away with the pool of urine gathering, or draining down to the gracht, for all to see.

    This is probably why you don’t see such laws of much concern in Europe.

  3. Mark Newton

    “Of course, this does not solve the problem with the other-gendered, in which the appearances are less obvious or clear, but I don’t see how any law or formal rule will ever be able to address that.”

    Exactly. Both pro and anti laws on this subject are doomed to collapse into absurdity.

  4. Hi Dan, thanks! Up until now the usual go to guy for such examples has been Buck Angel ( which I’d include a picture link if I’d picked up that skill already. He is extremely tough, masculine looking… beyond the vagina of course.

  5. Yet another excellent example of science, technology and medicine surging ahead creating new realities that take us years to adjust to. The early adopters are true pioneers

  6. “Ideally, we would just eliminate segregated bathrooms altogether and make them all unisex, but I just don’t see this happening across the US, anytime soon.”

    Yep that’s my feeling, too.

    Which means we’ll have to suffer for some time with protests by various parties, and all sides will utter irrelevant nonsense, and media coverage will blossom and politicians will spew. Eventually we’ll have a sit-com about a public bathroom where transgenders confront right-wingers, and they tell dirty jokes at each other.

    One observes Americans’ fascination with bodily functions, and comes to have serious doubts about the place of the human species on the evolutionary scale….

  7. The last time I was there, they had two bathrooms in the Maison de la Culture d’Amiens (France). One was called “Dames” and the other one “Personnes handicapées”.
    That was it. No separate bathroom for men.
    I’ve always found it an interesting approach.

  8. I think the key here is that you are just giving the country way to much credit in assuming it can tell the difference between sex and gender. Most (I think) have no or little sense that these are different. There is a whole cottage industry dedicated to denying that gender is a social construct. Watch Fox and Friends some time. (Not really.)

  9. Just like the abortion debate, liberals advocate a woman’s choice and conservatives advocate another life involved. To the person using even a single person facility, the bath room it is a right to choose. For a small child standing outside the bathroom and seeing a person of the “wrong” gender emerge evokes confusion and parental explanations they may not feel the child is ready for or they want to discuss.

  10. Victor Panza: Do you think the child would be less confused if the girl I posted above — who has male genetalia — went into the men’s room and the guy I posted above — who has female genetalia — went into the ladies’ room”? Because that’s what would be entailed by the conservatives’ proposed legislation.

  11. Hi Victor Panza, that assumes the child is raised to have assumptions there are “wrong” genders capable of emerging from bathrooms. Your statement would have held equally well decades past for children confused by people of differing race emerging from the “wrong” bathroom, or using the “wrong” drinking fountain.

    Ugh, I am not sure how many times “confusion” has been used to me as a cover for not handling issues in a practical manner. Is confusion really that harmful for a child? That is almost their basic state. Or for anyone for that matter?

    So a parent feels a child is not ready for (or they don’t want to discuss) something? Too bad parent, it is time to grow up and deal with reality. Reality doesn’t wait for when you want things to happen.

  12. Well Daniel and dbholmes I accept your reasoning but these cultural or local debates underscore that our brains are social organs so it is a matter (or proposed matter) that when in Indiana do as the Hoosiers do. But even Trump who is going to win the primary has weighed in on the liberal side of the issue of public bathrooms. As a condo and hotel owner with many public bathrooms and many employees of all gender type, I think he took the practical side.

  13. Bathroom politics and culture is not something that keeps me awake at night but having spent time in the mid-west, I was not surprised because these states do ‘preserve’ a lot of the older attitudes whiĉh I remember growing up with decades a go.

    Speaking of provocations, I thought Andrew Sullivan’s article was thought provoking. As an immigrant from England he offers a philosophical and scholarly pov, that I found interesting.

  14. I live in the lower-midwest, and I don’t think that the super-Evangelical-right wingers here would be very happy if the girl I posted walked into the men’s room or the guy I posted walked into the ladies room. They clearly haven’t thought through their own position and are just trying to punish transgender people in any way they can.