What I haven't seen discussed is the real objection going on is that NC insists you use the bathroom as defined by your birth certificate, and you can change that post-op. So people think that's too onerous, so what _should_ the standard be? Should you simply file something stating you are whatever gender? Do you have to present as the gender to some degree? Who decides if you are doing it enough? Etc.

The answer is that there is no need for any legal standard at all.

I think the problem (illustrated nicely by your comment) is that, in reality, gender is too complex and varied to be adequately addressed by this sort of legislation. While its easy enough to this sort of law to work properly 95% of the time, its hard to come up with a real legal test that doesn't leave some percentage of people marginalized and legally required to use the wrong bathroom (either because its not the one they would feel comfortable using, or also in many cases because it would make the other users of that bathroom uncomfortable).

This being the case, and given a complete lack of any real problem with bathroom use today, one would think that this counsels strongly in favor of having no specific law on the subject at all, and relying instead on the usual social convention. (Bearing in mind, of course, that in the extremely rare event that someone really does stroll into the wrong bathroom for voyeuristic purposes, or to sexually assault someone, we already have laws to punish those people.)

It never ceases to amaze me that people who are normally so quick to declaim against any purported intrusion into individual liberties (note that I'm not necessarily talking about you here) are happy to uncritically accept the proposition that the government should have a role in telling you which bathroom you can and cannot use.

>(Bearing in mind, of course, that in the extremely >rare event that someone really does stroll into >the wrong bathroom for voyeuristic purposes, >or to sexually assault someone, we already have >laws to punish those people.)

How would this work in your example? What could prevent me from saying I'm gender fluid and walk into the women's showers at the gym?

If we're ready to take the step to say that there is no gender binary then we kind of have to go the whole way and flip to communal showers/bathrooms/dressing rooms etc. Reading your comment reminds me of the obscenity law debates in 1964 when Justice Potter Stewart said...

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it,"

If we aren't ready to make the big leap to no recognized genders (which I would argue society at large is not ready for), then standards need to exist from a legal point of view in the mean time.

I think you're overcomplicating things. If a person walks into a public bathroom and starts leering at people, or worse, this is likely illegal regardless of the person's gender. Just ask Larry Craig. https://en.wikipedia.org/wiki/Larry_Craig_scandal (The original charge in his case was for "Lewd Conduct" but he eventually pleaded down to disorderly conduct.)

A person's perceived gender (which will be a function of that's person's subjective gender identity, among other things) will play a major role in determining whether a person's conduct is perceived in this way. A woman in a women's bathroom would likely have to do something pretty overt to get herself in trouble. A person who appears to be a man will, presumably, be on much thinner ice. It seems to me that a combination of this and the prevailing social pressure not to wander into the wrong bathroom should be all we need. And, after all, nobody to my knowledge has ever presented a shred of evidence that there is actually a problem with people using the "wrong" bathroom to warrant the sort of legislation we're talking about--especially when that legislation will indisputably harm an already marginalized segment of the population.

>How would this work in your example? What could prevent me from saying I'm gender fluid and walk into the women's showers at the gym?

How does this law prevent anyone from doing that already?

I'm not sure about this but my guess is that a man who refuses to abide by an establishment's rule of "no men in the women's showers" would be asked to leave. If he does not leave, he could be arrested for trespassing.

But given direction these new laws are taking, I'm further guessing that the Police should refuse to remove the man and instead arrest the proprietor for discriminating against this man based on his protected status of identifying as a woman?

Having no law at all and all unisex bathrooms is certainly a possible solution. It would be consistent but it would require people to get over certain hangups they may have.

Note that you can still have gender-segregated bathrooms without laws that get down into the weeds of who can use which bathroom. That, in fact, is the status quo in most U.S. jurisdictions. So while I'm not necessarily against unisex bathrooms, doing away with gender-segregated bathrooms isn't really what I had in mind.

>The answer is that there is no need for any legal standard at all.

As evinced by the fact that unisex bathrooms were the norm until the late 19th-early 20th century, and that rest stops and other establishments operate unisex bathrooms without any issue.

The problem with that approach is that not all transgender people elect to have operations, so making that the minimum bar is unreasonable. A much more reasonable (non-fear mongering) approach is to use the gender the person identifies with. I don't know how you set that bar, maybe it's obvious, maybe it requires a note from a physician or similar.

I think it would be fairly obvious to discern someone who's actually identifying with a given gender versus some guy who wishes to get into the women's restroom.

It's easy, make all stalls unisex; add a separator so the urinals are not clearly visible. Or more expensively, just have individual bathrooms.

As an aside, if you are ever in other parts of the world, the East, many bathrooms are open to the world -no doors, and people do alright.

A company I have worked for tried this, changing a few single bathrooms from M and W to unisex. The women protested because cleanliness went way down. They went back to M and W after 2 weeks.

That's because habits are hard to change. But give it time (or turnover) and it'd be fine. Have the cleaners come in more often and make sure everyone is responsible for keeping the stalls clean. Education.

> A much more reasonable (non-fear mongering) approach is to use the gender the person identifies with.

The problem with /that/ would be that non-transgenders would possibly feel uncomfortable with that - which I believe, but correct me if I'm wrong, is why there's gender-segregated bathrooms in the first place.

The only solution would be, as the other commenter says, to only have unisex bathrooms and to tell anyone that complains about that to fuck off.

> The problem with that approach is that not all transgender people elect to have operations

And some simply can't afford it. It requires a number regular sessions with a psychiatrist, and is difficult to get covered by health insurance. One friend quoted me their estimate of nearly $25,000, just for the surgery alone.

> I don't know how you set that bar, maybe it's obvious.

Perhaps you feel it's obvious to you, but do you trust the arbitrary judgement of some company's random employee? What if the employee or establishment decides that this is a case of "some guy who wishes to get into the women's restroom" but the patron disagrees? Should we always implicitly trust the word of the patron? Should a line be drawn? If so, where? Who can we trust as the arbiter of "genuine" gender identity? Is there any criteria that a reasonable person could use to ascertain if someone is using the "wrong" bathroom? Should we even care in any capacity who uses which bathroom?

What about situations where someone with a political agenda intends to deliberately make things difficult by doing their best to straddle the gray area between honest expression of gender identity and calculated abuse of our good faith? What about a scenario where someone's gender genuinely feels fluid and they find that they can identify as both genders at different times?

As an anecdote, I have a trans-woman friend who normally uses the woman's bathroom (without issue as far as I am aware), but who sometimes (when drunk at a bar) has deigned to use the men's room at times when the line to the woman's room was really long. In her own words "why should I make the line longer for women who can't use the urinal when I can be in and out of the men's room in a minute?". We have jokingly accused her of just not wanting to wait in line, and none of us care at all what bathroom she uses, but I could envision a scenario where this behavior becomes very controversial (if she can use a man's bathroom, why should she ever encumber the already heavily trafficked woman's room, some might argue)?

IMO, the best way to go about this would be to just have unisex bathrooms or urinal & stall bathrooms and allow people to use whichever they prefer. I don't see how any system that is contingent on someone's gender can work in this political climate since that requires determining gender in the first place.

The problem with that approach is women don't feel comfortable using the bathroom with a man, regardless of what he claims to be. So who's rights are more important? The born women's or the born man's?

So then you introduce someone that has female genitalia, but looks from all outward respects to be male (possibly including facial hair if they're on hormone therapy). By law in NC this person is required to use the women's restroom. Does that increase comfort for either of them?

Example: https://twitter.com/JayShef/status/712845760287494144/photo/...

Frankly, while I like being comfortable, one should always think twice before passing laws purely for the purpose of increasing comfort. (Particularly in this case, where the discomfort appears to be far more theoretical than common). When I think of the society my grandparents, or even, heck, my PARENTS found "comfortable", I would feel very sad to live there.

I agree its an imperfect standard -- how could one ever possibly determine what gender a person identifies with for legal purposes? But, if one must come up with some legal standard or other (which we shouldn't), I think GP's suggestion is better than focusing on genitalia or the gender assigned at birth.

Ultimately what makes someone comfortable or uncomfortable in a bathroom is the gender that they perceive others to be. They will usually not know what another person has between their legs, or what gender is written on a person's birth certificate. They just know what they look like and how they behave. And I'd bet that these criteria will better track a person's subjective gender identity than anything else. This is especially likely when one considers the fact that transgender people, like anyone else, will not want to make other people in the bathroom uncomfortable--or to be made uncomfortable themselves.

Edit: Here's another thing to think about. If we're really just worried about who is more uncomfortable, remember that for most third parties in the bathroom, this discomfort will be mild and fleeting. "That was weird, that women kinda looked like a man." But for the transgender person, the discomfort will be deeply felt and repeated daily for the rest of their lives. (Until, that is, they move to a better state.)

What about the trans man who's now stuck in the women's room? Now everyone's uncomfortable. Oops.

Or, more realistically, if your presented gender doesn't match your birth sex, or if you're "weird" and someone feels like challenging you under this law, you now don't have the right to use a public restroom. Just be honest and admit this is your goal instead of cherry-picking a single scenario.

We already have laws against harassment. What are you trying to prevent from happening? Why are those laws insufficient?

There are laws against speeding, running red lights, drinking while driving, doing drugs, and all types of things that are done every day. Laws are not sufficient.

Then clearly we should live in an anarchy. Like, what's your point?

We could outlaw using meth. But if is legal to sell, import, produce, and store meth. Then it is too easy to break the using meth law.

We could outlaw getting in car accidents. But if it is legal speed, drive drunk, and run red lights. Then it is too easy to break the car accident law.

My point is sure we outlaw harrasement but for those that may want to do that, allowing them to go into a room where women are alone and disrobed would make it too easy to break that law.

This prophylactic argument might be a reasonable one if there were an epidemic of transgender women (or, for that matter, cisgender men) harassing cisgender women in the bathroom. But, instead, it is virtually unheard of. The empirical evidence is that, today, the combination of informal social norms and retrospective laws against, e.g., lewd conduct and sexual assault are more than enough to discipline' people's bathroom behavior.

we should legislate that all men must be under constant video surveillance. not being on camera makes it too easy to break the law.

SRS costs $20k+ and often isn't covered by insurance. Most young mtf can't afford it (assuming they even want it), so this isn't a real option.

So the law basically means that a subset of the people in NC can no longer use public bathrooms, which is insane.

The standard should be "who gives a fuck what's in the pants of the person in the next stall?"

I would also like to think like this but it is more complex issue.

I see that there are at least 3 aspects: physiological comfort, hygiene and security.

I think that your proposal falls into physiological comfort category but I am afraid that changing personal attitude does not change the other two aspects.

So I would assume that women are a little better off with separate toilets in the given state of the society.

Would be interesting to see any research that tries to answer these questions.

Let's break that down, then.

What's the hygiene threat here? Transgender people know how to use the toilet just like cisgender people do.

What's the security threat here? As the now popular meme notes, at least three Republican Congressmen have been arrested for lewd conduct in bathrooms. There don't seem to be any verifiable incidents of transgender folks doing nasty stuff in bathrooms warranting these laws.

Ok, so let me try this again: "who gives a fuck what's in the pants of the person in the next stall?"

The person in the next stall can be man, woman or whoever. But it actually does not matter who is in the next stall.

What matters is who was before you in the stall or who wants to (forcefully) get along with you into the stall.

If unisex toilets would increase the risks for people with woman physiology then I would be wary about forcing them into unisex toilets. The question of the feelings of the transgender people would be a secondary mater in this case.

Now if there would be no risks then I am all for the unisex toilets as combined floor area would make them more practical.

> What matters is who was before you in the stall or who wants to (forcefully) get along with you into the stall.

This is already a crime, and one the new anti-trans laws do nothing to combat (unless you intend to require a birth certificate or a pat-down to enter the bathroom).

> If unisex toilets would increase the risks for people with woman physiology then I would be wary about forcing them into unisex toilets.

Then demonstrate that they increase the risks. As I noted, there appears to be a larger risk of lewdness in bathrooms from Republican Congressmen than transgender individuals. There's certainly no epidemic of transgender folks assaulting people in bathrooms. If anything, transgender folks are generally the ones at risk of assault.

All right, just to get things straight.

First of, I am not a US resident nor a citizen. Therefore I really do not care about the remarks about Republican Congressmen. Well, mostly.

Second, in my comment I mostly focused on the group who are physiologically women and also address themselves as women, i.e. women. If this was not clear enough, I am sorry.

I did also not mean or write that there is in my opinion an increased risk from transgender people in the case of unisex toilets or that it would increase the risk for the transgender people. I hoped that the meaning was clear enough, I am sorry again.

I am also not arguing against the opinions voiced here like "transgender folks are generally the ones at risk of assault".

I am not physician and I do not have any court statistics handy, but my hypothesis was that

a) hygiene in the men occupied toilets in general might be worse than in women only occupied toilets and sharing a public toilet with men might raise the risk of infections for women (it is a less problem for men because they mostly use urinal in the public toilets, if this was not clear enough),

b) women may be at higher risk to be sexually assaulted in the toilets shared with men (and please note, I know that this is already a crime).

Then lets create unigender bathrooms and be done with it.

Most people do. Bsic decency should be maintained in human society.

If you're seeing enough of a transgender person in the bathroom to be able to determine if they're pre-op or post-op, chances are you're the one violating "basic decency" by being a creeper.

I wonder what is the legal basis for having separate bathrooms at all. The separation seems to be a cultural one. Most of us have shared bathrooms with our family. What practical needs does the segregation solve ?

For example, if "penis sighting in the urinal" is a "problem" that the segregation solves, then self-identified gender is irrelevant.

This is true for bathrooms but what about locker rooms?

until the day we'll all be comfortable with nudity i don't see them changing.