Kentucky governor Matt Bevin said last week that he hopes the Kentucky legislature won’t consider a transgender-bathroom bill in the upcoming legislative session; according to Bevin, “the last thing we need is more government rules.” He’s absolutely right, and I think it’s worth offering a conservative defense of transgender rights — which ought to be a conservative issue.
On the American political spectrum, conservatism is the mind-your-own-business ideology. I know smoking is unhealthy, but I enjoy smoking, and my health is none of your business. I know motorcycles can be dangerous, but I like the wind in my hair; whether or not I wear a helmet is none of your business. I realize that fireworks can blow up before they’re supposed to, but they’re fun and my fingers are none of your business. Don’t tell me what sort of car to drive, or what kind of light bulb I can buy, or what kind of milk I can drink, or how to raise my kids.
The response, from many conservatives, is that it’s not a question of interfering with personal freedom — the freedom to live one’s own life however he’d like — but of preserving personal freedom — that is, the freedom to go to the bathroom among only people of the same biological sex. Allowing mixed-biological-sex bathrooms risks making adults uncomfortable, and risks opening the door to child predators, or so the argument goes. I’m afraid neither of those positions strikes me as well thought-out. Certainly not from a conservative point of view.
Unfortunately, the door is already open to child predators. So long as there are public bathrooms, bad people will use them (if for no other reason than evacuation). If child predators using your kids’ bathroom is your concern, you should be worrying about the male predators in the boys’ bathroom right now, not the male predators who might claim to be transgendered to get into the girls’ bathroom. (Or vice versa.)
It is a fundamental position of American conservatism that you don’t penalize innocent people in anticipation of criminal activity.
It’s not a transgendered person’s fault that some other, theoretical transgender person might theoretically commit a sex crime. The position of American conservatives is that, as Benjamin Franklin said, it’s “better 100 guilty persons should escape than that one innocent person should suffer.” This would be true even if there had been a spate of transgender attacks on children (no one wants to ban Catholic clergy from bathrooms, for instance) but of course there hasn’t. Transgender people make up a tiny percentage of the population — something like a third of one percent — and don’t appear to have a higher propensity to crime than anyone else. The potential predator argument holds no water.
As for being uncomfortable in a public bathroom — should we ban guns because they make liberals uncomfortable? (And it’s not as if public bathrooms were comfortable to begin with.)Then there’s the practical argument: Thanks to hormones and surgery, many transgender men and women are visually indistinguishable from the usual kind. Won’t the people made uncomfortable by wondering if they’re sharing the bathroom with transgender people be made uncomfortable by sharing it with someone who, to all outward appearances, belongs to the opposite sex? And couldn’t hypothetical predators walk into the wrong bathroom, claim to be transgendered, and say the law requires they be there? None of this has been thought out. Conservatives shouldn’t be passing laws so they can find out what’s in them.
And, in the end, how will the government tell who is and isn’t transgendered? Will suspicious parties be sequestered by police and asked to produce sex identification? Will broad-shouldered women be detained on suspicion of a Y-chromosome?
Conservatives should remember that big government threatens freedom, even when Republicans are in power. They should also remember that conservatives who pick and choose whose freedom they defend aren’t worthy of the name.
— Joshua Gelernter is a weekly columnist for NRO and a frequent contributor to the Weekly Standard.