by Brandon McGinley

On Tuesday of this week, I had an article published in the online journal Public Discourse arguing that “gender identity non-discrimination” legislation like Pennsylvania’s HB/SB 300 will necessarily lead to a functional prohibition on sex segregated personal facilities like bathrooms, locker rooms, etc.  The piece attracted the attention of prolific LGBT blogger Zack Ford, who offered his critique at ThinkProgress.

Ford responds to my argument for why we have sex-segregated personal facilities at all:

“McGinley’s argument requires the assumption that everybody in the locker room presents as the same gender and is attracted to the same (opposite) gender, thereby erasing not only transgender people, but all LGBT people.”

More pointedly, here’s his tweet expressing his primary difficulty with my essay:

To be clear, I am not arguing that transgender people should go in the woods.  All the examples I gave of the troubling implications of this type of legislation were of people who appeared as one sex being granted access to facilities reserved for the opposite sex.  I didn’t address the question of what facilities people who have undergone sex change surgery should use because, to my understanding, it is not a source of controversy.

The common sense answer is this: Folks should use the facilities where they would appear, regardless of their own convictions about their gender, most at home, or a private unisex facility.  Some gender non-conforming people might prefer to use facilities in accord with their (internal) gender identity, and some other people might be uncomfortable even with a post-op transgender person in the bathroom; though both of these impulses are understandable, this is the type of compromise on which social comity is built.   But more than that, it just makes sense given the purpose of sex-segregated facilities to begin with, as I argued in the Public Discourse essay.

Ford’s secondary criticism regards my secondary argument about keeping sexual tension out of personal facilities.  He says that I inaccurately erase the possibility of same-sex sexual tension in sex segregated facilities.  I addressed this in an earlier draft of the essay, but this paragraph was cut for space:

One might object that this second point is heteronormative, and indeed it is because the world is heteronormative.  We can never completely de-sexualize any aspect of the human experience, but we can try to minimize the sexual nature of places and experiences that ought not to be sexual.  And the fact of the matter is that opposite-sex sexual attraction is the norm in the human species, both in terms of raw numbers and its orientation toward procreation.  Nude men and women comingling is more sexually-charged, more often than nude men or nude women comingling.  Only the most abstract and obdurate sexual theoretician could deny this fact.

Now, I don’t expect to convince Ford, or anyone at ThinkProgress, about the unwisdom of gender identity non-discrimination legislation.  I do hope to make the case, however, that opposition to such legislation need not be based on ignorance or dismissal of the existence and experience of transgender people.