American news is awash with tales of the battle of the bathroom bills. In response to a growing general acceptance of LGBT rights, some states have passed laws requiring a person to use the bathroom (and similar facilities, such as locker rooms) for the sex on their birth certificate. These laws have been met with a negative response from much of the business community, making for a rare conflict between Republicans and business interests. The federal government has also taken a stance on this matter, asserting that states that have such laws are in violation of federal law. The Obama administration has warned these states that their violation could cost them federal funds.
Being a veteran runner, I am generally fine with people using whatever bathroom they wish to use, provided that they do not otherwise engage in immoral or criminal activity. Almost anyone who has been at a major race probably has a similar view out of pure practicality. Also, like any mature adult, I go to the bathroom to do my business and as long as everyone else is minding their business, I could care less who is in the next stall. Or urinal. Obviously, I do hold that assault, rape, harassment, stalking, and so on should not be allowed: but all these misdeeds are covered by existing law.
Being a philosopher does require that I give fair consideration to opposing arguments and that that be given the merit they earn through the quality of the reasoning and the plausibility of the premises. As such, I will consider a few arguments in favor of bathroom bills.
One of the most compelling arguments is the one from harm. The gist of the argument is that allowing people to use facilities based on their gender identity will allow rapists, molesters, pedophiles and peepers easy access to women and girls, thus putting them in danger. The bathroom bills, it is claimed, will protect women and girls from this danger.
Since I also accept the principle of harm, I accept the basic reasoning conditionally: if the law did protect women and girls from harm (and did not inflict a greater harm), then it would be a sensible law. The main problem with the argument lies in the claim that the bills will protect women and girls from harm. Many states and localities have prohibited discrimination in public facilities and there has not been an increase in sexual assault or rape. As such, the claim that the bills are needed to protect the public seems to be untrue. The imposition of law should, as a matter of principle, be aimed at addressing a significant harm.
This is not to deny that a person could pretend to be transgender so as to engage in an attack. However, such a determined attacker would presumably attack elsewhere (it is not as if attacks can only occur in public facilities) or could disguise himself as a woman (the law does not magically prevent that). There seems to be an unwarranted fear that bathrooms are ideal places for attacks, which does not seem true. That said, if it turns out that allowing people to use facilities based on their gender identity does lead to a significant harm in regards to increasing sexual assaults and other harms, then the bathroom bills would need to be reconsidered.
A second argument that has been advanced is the privacy argument. The gist of it is that allowing people in facilities based on their gender identification would violate the privacy of other people. One common example of this is the concern expressed on the behalf of school girls in locker rooms: the fear that a transgender classmate might be in the locker room with them.
While our culture does endeavor to condition people to be ashamed of their nakedness and to be terrified that someone of the opposite sex might see them naked, the matter of privacy needs to be discussed a bit here.
On the face of it, gender restricted locker rooms are not actually private. While I am not familiar with the locker room for girls and women, the men’s locker room in my high school had a group shower and an open area for lockers. So, every guy in the locker room could see every other guy while they were naked. I recall many of my fellows (who professed to be straight) checking out the penis sizes of everyone else. Some boys found this lack of privacy too much to take and would simply put their normal clothes on over their gym clothes without showering. Or they would try to cover up as much as possible. As such, the concern about privacy is not about privacy in the general sense. In space, everyone can hear your scream. In the locker room, everyone can see your junk.
As such, the concern about privacy in locker rooms in regards to the bathroom bills must be about something other than privacy in the usual sense. The most reasonable interpretation is privacy from members of the opposite sex: that is, girls not being seen by boys and vice versa. This could, I suppose, be called “gender privacy.”
Those favoring transgender rights would point out that allowing people to use facilities based on gender identity would not result in boys seeing girls or vice versa. It would just be the usual girls seeing girls and boys seeing boys. Since the main worry is transgender girls in girls’ locker rooms, I will focus on that. However, the same discussion could be made for transgender boys.
The obvious reply to this would be to assert that gender identification is not a real thing: a person’s gender is set by biological sex. So, a transgender girl would, in fact, be a boy and hence should not be allowed in the girls’ locker room. This is presumably, based on the assumption that a transgender girl is still sexually attracted to girls because he is really still a boy. There seem to be three possibilities here.
The first is that transgender girls really are boys and are sexually attracted to girls (that is, they are just faking) and this grounds the claim that a transgender girl would violate the privacy of biological girls. This would seem to entail that lesbian girls would also violate the privacy of biological girls and since about 10% of the population is gay, then any locker room with ten or more girls probably has some privacy violation occurring. As such, those concerned with privacy would presumably need to address this as well. The worry that a “hidden homosexual” might be violating privacy could be addressed by having private changing rooms and closed shower stalls—however, this would be quite costly and most public schools and facilities would not have the budget for this. As such, a more economical solution might be needed: no nakedness in locker rooms at all to ensure that privacy is not being violated. People could wear bathing suits while showering and then wear them under their clothes the rest of the day. Sure, it would be uncomfortable—but that is a small price to pay for privacy.
The second is that transgender girls are not sexually attracted to girls and hence do not violate their privacy: they are just girls like other girls. It could be objected that what matters is the biology: a biological boy seeing a biological girl in the locker room violates her privacy. Arguing for this requires showing how the biology matters in terms of privacy—that being seen non-sexually by biological girls is no privacy violation but being seen non-sexually by a biological boy who is just going about their business is a privacy violation. That is, if the person looking does not care about what is being seen, then how is it a privacy violation? The answer would need to differentiate based on biology, which could perhaps be done.
The third is that transgender girls are just girls. In which case, there is no privacy violation since it is just girls seeing girls.
While the harm and privacy arguments do have some appeal, they do not seem to stand up well under scrutiny. However, they might be other arguments for the bathroom bills worth considering.
Apparently eager to do some serious damage to North Carolina’s reputation and economy, the state’s Republican controlled legislature passed “the bathroom bill” and the Republican governor signed it immediately. This law seems to have been in response to Charlotte, North Carolina passing a city ordinance extending legal protection for LGBT people and allowing transgender folks to use bathrooms based on their gender identity.
The “bathroom bill” makes it so that local governments cannot pass their own antidiscrimination laws—the state law, which is more restrictive than the Charlotte ordinance, trumps all local laws. The reason it is called the “bathroom bill” is that it has the effect of forbidding transgender people from using the bathroom that matches their gender identity. Instead, they must use the bathroom that matches the sex on their birth certificate. Interestingly enough, the law also precludes any local government from passing its own minimum wage laws—the minimum wage falls under the antidiscrimination law.
While the most plausible explanation for the law is prejudice against people who differ from the heterosexual norm, the proponents of the law obviously cannot make that the public reason for their support. Rather, there are two main reasons presented in defense of the law. The first is that the imposition of state control over local governments was an attempt to rein in “governmental overreach” on the part of Charlotte and other local governments.
There is a certain irony in Republicans passing a law that restricts the liberty of local governments—this is because the importance of local government and assertions about getting big government off the back of the people are stock talking points. However, many Republicans seem to be fine with local government only to the degree that the locals do what they want.
To be fair, there are legitimate issues here about the extent of the authority of local governments and the extent to which the state has the right to impose on local authorities. One approach is practical: having a hodgepodge of inconsistent laws across a state would be difficult for citizens and businesses—there are advantages to uniform, statewide laws. Another approach is a matter of ethics—the restrictions and liberties of laws should be the same across the state based on the principle of fairness. Of course, using a moral foundation for uniformity would require a moral assessment of the laws being imposed: having an unjust law imposed uniformly would be worse than a just law that was imposed in limited locations.
My own view is that antidiscrimination laws should be uniform but also just. As such, I do agree that the state (and federal government) should be setting these laws. But, these laws must be just. In the case of the North Carolina law, my view is that it is unjust because it codifies discrimination while forbidding local authorities from passing just laws. Hence, the state is in the wrong here. I now turn to the second justification for the law.
Proponents of the law contend that they do not support it from prejudice and that it does not discriminate. They claim that the law is needed in order to protect people, especially children, from being assaulted in bathrooms and locker rooms by transgender people.
On the face of it, the law does aim at meeting what I consider a basic justification of a restrictive law: it has the professed intent of protecting people from harm. This is an excellent justification for limiting liberty and is the principle that justifies, for example, forbidding companies from knowingly selling dangerous or defective products.
While the professed intent does matter, the proper assessment of a restrictive law aimed at preventing harm requires considering whether the harm in question justifies the restrictions being imposed. In the case of the bathroom bill, the easy and obvious answer is that it does not. The reason is that there seems to be an exceptional lack of evidence that transgender people will present a danger to others if they are permitted to use bathrooms based on their gender identity.
While it is certainly not impossible for a transgender person to engage in such an attack, the statistical evidence is that there have been no attacks. There are currently numerous states and many cities that allow people to use facilities based on their gender identity—so there have been many opportunities for such attacks.
The obvious reply is to point to claims that such attacks (or at least sexual misconduct) have occurred, thus refuting the claim that transgender people are not a threat. The counter to this is to point to the fact that such claims tend to be mere urban myths and that the evidence shows that the myth of the transgender bathroom assault is just that, a myth.
It could be countered that while there is currently no evidence that allowing transgender people to use bathrooms based on their gender identity, an attack could happen and this possibility, however remote, justifies the law.
The easy and obvious response to this counter is that basing restrictive laws on the mere possibility that something bad might happen would be absurd. This principle would warrant incredibly restrictive laws across the board and would also warrant violating most, if not all, rights. For example, men might attack women on hiking trails, so trails must be restricted to one gender to avoid the possibility of attack. As another example, a car might be used in vehicular homicide, therefore people should be forbidden from owning cars. Naturally, if it could be shown that transgender people pose a serious risk to the safety of others, then restriction would be justified. However, the threat would need to match the restrictions imposed by the law.
As a final response, a proponent of the law could say that when a case of a transgender person attacking someone in a bathroom is confirmed, that will show the law is justified. The counter to this is to point out that this principle is absurd—if a car ban were proposed, it would not be justified by pointing to a case or even a few cases of vehicular homicide. As noted above, what would be needed is evidence of a threat that warrants the restriction.
In light of the above discussion, the “bathroom bill” fails the basic test of restrictive laws: it imposes restrictions without the justification of preventing a sufficient harm. This should come as no surprise—the law is not about protecting people but about prejudice.
In politics it is often claimed that perception is reality. The basic idea is that politicians and their minions can shape the perception of people and thus define what they take to be reality. A quick look at the political landscape in most countries shows that politicians and their minions are rather good at this sort of thing.
In some cases, the idea that the shaped perceptions are the reality has some appeal. After all, some matters are such that whatever people think is thus correct. A non-controversial example of this is etiquette: what people think about manners determines what is polite or rude. As might be imagined, things get a bit more controversial when it comes to matters of value, such as ethics. While it can be argued that ethics are merely a matter of perception (that is, what people think is bad is bad because they think it is so), this is not something that can simply be assumed. Not surprisingly, politics often involves battles of value and the various sides attempt to define and redefine the perceived “reality” of particular values.
However, when it comes to physical reality, it would seem absurd to say that perception is reality and it would seem rather odd to try to impose on reality through laws. After all, reality is reality and this can be easily and painfully tested. As philosophers and scientists see it, we should generally endeavor to make sure that our perceptions are matching reality rather than assuming that what we believe is the reality because we believe it. Rational people also endeavor to make decisions based on reality rather than attempting to mentally re-define matters to suit what they would like. After all, insisting that something is not true because one does not want it to be true is the classic wishful thinking fallacy.
One unpleasant fact that people would general prefer not to be true is that the sea level is supposed to rise. In particular, a recent study for the NC Coastal Resources Commission predicted that the sea level in North Carolina would gradually rise by about one meter. Given the importance of coastal property to North Carolina it is no surprise that the Republicans in the state legislature sprang into action. What is surprising is the response: Replacement House Bill 819 seems to make measuring the rise in sea level using the methods used by scientists against the law. A key bit of wording is that “these rates shall only be determined using historical data, and these data shall be limited to the time period following the year 1900. Rates of seas-level rise may be extrapolated linearly. …” In short, scientists would be forbidden from extrapolating exponential (which seems necessary to account for the existing data) and would be required by law to extrapolate linearly and within the time limit set by the law.
This, to say the least, seems rather bizarre. To use an obvious analogy, it would be like addressing an oncoming storm by forbidding meteorologists from using certain data when making predictions. To use another analogy, it would also be like address a patient’s illness or injury by forbidding doctors from using certain data that would show that the patient is very ill or seriously injured.
This approach is also rather problematic on at least two grounds. One obvious concern is that this sort of approach seems rather Orwellian-that is, if reality does not suit the views of those in power, then the response will be a law aimed at redefining reality. This seems to be a clear form of willful and systematic deception which seems to be rather immoral.
A second obvious concern is that the approach does nothing to solve the problem. In fact, it makes its less likely that the problem will be solved by requiring that the data be re-calculated to show that there is not a problem. This will clearly cause more harm than good, making it rather wrong-if only on utilitarian grounds. To use an obvious analogy, this would be morally comparable with responding to a predicted severe epidemic by insisting that the doctors change the tests so that the epidemic is no longer predicted to be severe.
It could, of course, be replied that the bill can be justified on utilitarian grounds, namely that changing the methodology so that the results are better would have more positive than negative consequences for the right people. The challenge is, obviously enough, showing that this is the case. While not impossible in principle, it does seem unlikely.
Another possible reply is that the scientists who conducted the initial study are in error and they have been using the wrong method. The bill, it could be contended, does not seek to change things so the data looks better. Rather, the bill is aimed at ensuring that the science is being done properly. It is presumably merely a matter of coincidence that the redefined data would be in accord with what certain people want others to believe (and perhaps wish to believe themselves). This is, of course, a matter that would need to be settled by those who are experts in the relevant fields-that is, a matter best addressed by scientists rather than politicians. Naturally, if the majority of experts agree that this new methodology is correct and the other usual conditions for an argument from authority are met, then the new methodology should be accepted. However, to accept that the methodology should be changed merely because a bill says so would be poor reasoning indeed.
Earlier this week Obama came out in support of same sex marriage. I initially learned of it while playing SWTOR:
D: “Obama just came out for same sex marriage. Why do you think he did that?”
Me: “I’d say that it was a political move aimed at pandering to certain voters.”
D: “Really? I wanted to like Obama.”
R: “He’s a politician.”
Me: ” Look out, one of them is heading right at us.
D: “A politician?”
Me: “No, just an elite droid.”
D: “What does it think about same sex marriage?”
Me: “Not sure. I just put a rail shot through its electronic brain, so we’ll never know.”
Switching gears to be more serious, Obama’s evolution does raise some interesting questions. On the one hand, people do evolve in their views over time. Romney, for example, had to evolve a great deal during his attempt to secure the nomination and it seems reasonable to regard Obama as being at least as sincere as Romney. There is also the fact that Obama seems to have been for same sex marriage before being president, so perhaps he devolved rather than evolved.
On the other hand, it is tempting to think that Obama’s evolution is aimed at an advantage (Obama’s evolutionary advantage, so to speak). After all, politicians routinely change the views to achieve some practical end. For example, critics of Romney accused him of flip-flopping on his views.
One obvious counter to this view is that taking this stance on same sex marriage will cost him support. For example, many people in the black community who supported Obama are vehemently opposed to same sex-marriage. While they might not throw their support behind Romney, they might decline to vote for Obama. As another example, the recent success of the amendment in North Carolina shows that a majority of voters are against same sex marriage in that state. Given that other states have similar laws, this might actually cost him the election. Given the negative political consequences, it could be argued that his stance is one of principle rather than mere pandering.
The obvious response to this is that Obama’s strategists might have calculated that the loss of votes among people who would have voted for Obama but for this stance will be offset by the support he will gain (or keep) among those who favor same sex marriage. Those who are even more cynical might point to the fact that Obama is trying to get what some pundits are calling “gay money”, namely financial support from the more affluent members of the LGBT community and their allies. Some credence is given to this view by the fact that Obama enjoyed a significant surge in contributions after taking this position. He also, the cynical might note, took this position months before the election, hence allowing time for it to slip out of the minds of many voters.
Naturally, Obama’s motivations are not relevant to whether or not same-sex marriage is good or bad. In my own case, I support the legalization of same sex marriage on the grounds that the state should not impose on the liberty of the citizens except when doing so is necessary for preventing unwarranted harms to citizens. As such, my support for same-sex marriage stems from my classic conservative values regarding the legitimate role of the state and the extent to which it should impose its will on the citizens. Naturally, I would expect all those who oppose the state imposing its authoritarian will on the people will join me in opposing such attempts to restrict liberty.
While some States in the United States have passed laws allowing same-sex marriage, other states have passed laws to ban it. Some states have even taken an extra step by amending the state constitutions to define marriage as being between one man and one woman. On May 8th, 2012 North Carolina voters went to the polls to decide whether or not their state constitution would be amended to “defend” marriage. While this matter is interesting from a legal perspective, my main interest is from a philosophical perspective, mainly regarding the quality of the arguments in favor of such restrictions on marriage as well as their ethics.
As I have done in other essays on the subject of same-sex marriage, I will quickly run through the stock fallacious arguments given for such laws. The first stock argument is that marriage between a single man and woman is a matter of tradition. This is, obviously enough, a fallacious appeal to tradition. The mere fact that something is a tradition hardly shows that it is right or correct. To use the usual counterexample, slavery was (and is in some places) a well-established tradition, yet this hardly serves to justify it.
A second fallacious argument is that marriage between a man and a women is what most people do, thus it is correct. In other words, it is a common practice and thus is right. Obviously enough, this is merely a fallacious appeal to common practice. There are, obviously enough, many bad practices that are quite common (like lying), but their being common does not make them good.
A third common fallacious argument is that most people believe that marriage should be between a man and woman. Even if it is assumed that this is true, this would still seem to be a fallacious appeal to belief. After all, the mere fact that most people believe something (like the earth being believed to be the center of the solar system) does not prove that it is true.
Now that the easy to dismiss fallacious arguments are out of the way, I can look at some of the other arguments that have been presented in support of such laws.
One stock argument is essentially an appeal to religion, specifically Christianity (at least the versions that forbid polygamy). The argument typically goes that since God married Adam to Eve, this defines marriage in the biblical sense. Those with clever wits often put it more rhetorically by saying that it was “Adam and Eve, not Adam and Steve.” Since marriage is defined by the Christian faith as between one man and one woman, that is what the law should be. As might be imagined, there are many problems with this.
One obvious legal problem is that to the degree the proponents of such laws claim that it is based on a specific faith, they are in danger of violating the first amendment of the United State constitution, namely the bit that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” While I am not a constitutional lawyer, I would suspect that a plausible case could be made that creating a law explicitly based on a religion does involve the establishment of a religion. In addition to the obvious legal problems, there is also the moral concern regarding the imposition of a specific faith’s values upon the population as a whole. This would seem to be a clear and direct violate of religious liberty and thus would seem to be morally unacceptable.
A second obvious problem is that basing the law on a religious view would seem to require that this view be established as correct. After all, if it is claimed that marriage is such that it can only between a man and a woman because of what God wants, then it needs to be established that God exists and that this is what God, in fact, wants. Otherwise, the law would have no established foundation and would be as sensible as basing a law on a myth or fictional tale. Naturally, if it can be shown that marriage is between one man and one woman as a matter of metaphysical necessity, then that would nicely establish the foundation of the law. In fact, it would show that no such law would really be needed since no one else could, in fact, be married. To use analogy, we do not need laws that ban people from driving their cars faster than the speed of light-they simply cannot do this because of the nature of reality.
There are, of course, non-religious arguments for these laws. A rather common argument is that the laws are needed to protect the sanctity of marriage. The idea seems to be that allowing same-sex marriage would be harmful to marriage (and presumably the married) and thus, on the principle of preventing harm, same-sex marriage should be outlawed by a constitutional amendment.
One obvious point of concern is whether or not allowing same sex-marriage harms marriage and heterosexual couples. While, of course, it might upset them that people are doing something they do not like (getting married), that is obviously not sufficient justification. What would be needed would be objective evidence that same sex-marriage would do enough harm to marriage and married couples to warrant forbidding same sex-marriage. The evidence for this seems to be, obviously enough, sorely lacking and the burden of proof rests on those who would make an imposition on the liberty of others to show that such an imposition is warranted.
Intuitively, same-sex marriage would not harm marriage or married couples. After all, it is difficult to imagine what sort of damage would be inflicted. Would married couples love each other less? Would there be more cases of domestic violence or adultery? Would married parents be suddenly more inclined to abuse their children? None of this seems even remotely likely.
But, suppose it is assumed that marriage must be protected. If this is taken seriously, then it would certainly seem to follow that it would need to be legally protected from whatever might damage its sanctity. To use an analogy, laws to protect people from murder are not just limited to, for example, making it illegal to murder someone with aluminum baseball bat. Rather, it is the murdering that matters. The same should apply to marriage: if marriage must be protected by making it between one man and one woman, then surely it must also be protected against whatever would damage its sanctity. As such, it would seem equally reasonable to ban marriages involving any sort of person whose actions or nature might do damage to the sanctity of a marriage.
Intuitively, allowing immoral people to marry would seem to damage its sanctity. As such, people would need to establish their moral goodness before marriage and presumably any straying from the path of virtue (such as by having an affair or otherwise failing in their vows) would result in the marriage being suspended or even nullified. Naturally enough, people who intend to get married in the hopes of financial gain, from lust, or for any reason that would sully the sanctity of marriage would need to be prevented from getting married. Given all these dire threats to the sanctity of marriage, it would seem that if the matter is serious enough to warrant a constitutional amendment it would also warrant the creation of a full government agency to regulate and protect the sanctity of marriage. After all, if the defenders of the sanctity of marriage were content to merely prevent same-sex marriage, one might suspect that they were acting from mere prejudice against same sex couples rather than by a sincere desire to protect marriage. While this might seem as big government violating liberty, those supporting such laws will surely see that there is little difference between same-sex couples that they cannot marry because marriage must be protected and telling anyone who would violate the sanctity of marriage that they cannot marry. As such, more general restrictions on who can get married (such as people who are not morally good or who are not marrying purely from love) would seem no more (or less) unjust that preventing same sex marriage.
Naturally, being a person with a social conscience and a professional ethicist, I would be willing to accept the position of Marriage Czar and head up the Sanctity Defense Agency to ensure that marriage remains eternally pure and unsullied. No doubt I would have to spend most of my time dissolving existing pseudo-marriages, but I am sure people will thank me for this in the end.