Bench Memos

Law & the Courts

On Women Who Really Do Look Like Men

One common policy objection I hear to North Carolina’s H.B. 2 law on access to single-sex multi-occupancy bathrooms and showers in public schools and government buildings goes something like this: “There are transgender men [i.e., biological women who identify as men] who look just like men. You really want to force them to use the women’s restrooms. Won’t that scare the women and girls you say you want to protect?” The objection is typically accompanied by a photo of someone who is identified as (or implied to be) a biological female but who, through the uses or abuses of modern chemistry and surgery, does indeed (at least when partly clothed) look just like a man, facial hair and sculpted chest muscles included.

The objection is a worthwhile one to consider. But it turns out that serious consideration of it defeats—and highlights the folly of—the transgender claim, led by the Obama administration, for a one-size-fits-all requirement that anyone who identifies as a member of the opposite sex, no matter his or her appearance, be allowed to use the single-sex facilities of the opposite sex, no matter whether those facilities are restrooms or showers or dormitory rooms, no matter whether they’re in schools or businesses or public places. (I’m setting aside in this post that the Obama administration’s claims about what Title VII and Title IX supposedly require are legally meritless and incoherent, and I’m instead focusing just on the question of what sound policy ought to be.)

Consider:

1. People who identify as transgender do not define themselves by their outward appearance. Don’t take my word for it. Here’s GLAAD (emphasis added):

Gender identity is a person’s internal, personal sense of being a man or a woman (or someone outside of that gender binary). For transgender people, the sex they were assigned at birth and their own internal gender identity do not match.…

[M]ost transgender people seek to bring their bodies more into alignment with their gender identity.

Many transgender people are prescribed hormones by their doctors to change their bodies. Some undergo surgeries as well. But not all transgender people can or will take those steps, and it’s important to know that being transgender is not dependent upon medical procedures.

Thus, there are men and boys who identify as female but who don’t look at all like women or girls, whether that’s because they’re early in the transition process, or because they choose not to, or because whatever steps they’ve undertaken haven’t changed much. Vice versa, of course, for women and girls who identify as male.

2. So the very same situation that the transgender advocates try to deploy to their advantage—an unknown person who looks like a man enters a women’s restroom—is exactly what their own position would call for. The only difference is that in their example the person who looks like a man is a biological female, whereas in my example the person who looks like a man is a man who thinks he’s female.

So transgender advocates can’t coherently object to laws like H.B. 2 on this basis when their own preferred solution would yield the same result.

3. There are of course plenty of other scenarios that women and girls would likely find even more jarring than the intrusion in a restroom of someone who looks like a man: for example, having men or boys take showers with them and watch them dress and undress. Somehow the transgender folks seems not to factor these scenarios into their calculus.

4. More broadly, it is highly doubtful that there is a single one-size-fits-all solution to the various scenarios that arise. Yet that is exactly what the transgender advocates and the Obama administration are trying to impose. It is they who have made it impossible to retain any informal system of customized accommodations that reflect particular circumstances. (And it is exactly such a system that would have allowed women who really look like men to use the men’s restrooms.)

5. In the face of the transgender assault, H.B. 2 is an entirely sensible, though necessarily imperfect, response. Far from trying to impose a uniform solution (much less “force” women who think they’re men to use the women’s restrooms), it leaves private businesses entirely free to adopt whatever policies they want for their restrooms. It also allows public schools and government buildings to provide single-occupancy facilities that can be used by anyone. And under North Carolina law anyone who undergoes a surgical so-called “sex change” can change the sex listed on his birth certificate and thus use the facilities of his gender identity.

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