Laws Won’t Keep Bathrooms Safe

(CW: Discussions of transphobia and sexual abuse)

The Washington Post recently reported on a South Carolina bill introduced by Senator Lee Bright who claims, “I don’t believe transgender people are pedophiles,” but, “I think grown adult men would use this as protection to violate women in the restroom.”

Like many others, Bright fails to understand that non-discrimination laws aren’t meant to protect against assault nor do they need to. In states where non-discrimination laws have been instituted, men who use them as an excuse to harass or assault women would still be legally liable for their actions.

Besides, there are many laws that all of us “take advantage of” every single day, harming others in the process. This harm doesn’t automatically make the intent behind the law wrong-headed and it doesn’t mean we should punish those who had nothing to do with the harm by depriving them of their rights. In other words, the transgender community shouldn’t suffer the consequences of pedophiles and sexual predators, especially not if you claim you don’t think they are those kinds of people.

The Post also notes that when U.S. Attorney Bill Nettles was asked about cases in which transgender folks verbally or physically assaulted others, he responded simply, “I can find none.” Nettles also noted that South Carolina already has laws to address “assault and battery.” This response, while helpful, doesn’t go far enough.

Arguments for discrimination against transgender individuals often presume that laws make us safe. But ultimately what keeps people from harming each other is their own internal sense of right and wrong. A ubiquitous though minor example is jaywalking.

Individuals will abridge or ignore the law altogether so long as doing so won’t harm other people. This is a commonsense approach that people have taken on much larger scales; for instance, widespread use of marijuana despite its illegality.

If cis people want to be safer from predators, they need to understand that most predators aren’t dressing up so they can assault people. They’re much more likely to be people you know. And if you’re worried about strangers and children, the US Justice of Department reports that only 10% of sexual predators are strangers to the victim-child.

Those concerned with safety under non-discrimination laws should also consider the general safety of the transgender community.

ThinkProgress cites a study by the Williams Institute in 2013 focusing on transgender folks, which concluded, “an overwhelming majority — 70 percent — had experienced some sort of negative reaction when using a bathroom.”

These reactions included verbal harassment, denial of restroom use, and even physical assault in 9% of the cases.

ThinkProgress says that all of this occurred “in spite of the fact that DC’s enforcement regulations contain ‘the strongest language in the country in regard to gender-segregated public facilities’ to protect trans people from just these sorts of issues.”

Neither Bright’s law nor non-discrimination laws are guarantees of safety. In fact, nothing is a guarantee of safety. All we can hope to do is optimize relative safety, but the state is hardly the best tool to do that. The overwhelming majority of safeguards people rely on are of the non-state variety. The state is the organization that has historically been captured by privileged groups to oppress marginalized ones — so safety seems like the antithesis of what’s offered by the state.

Campaigns that unify transgender and allies like #IllGoWithYou are much more effective at providing safety. That’s because these forms of solidarity rest on local and individual knowledge about their communities and personal circumstances. This gives people an edge when responding to transphobia in their lives, far more so than relying on the state’s malleable pieces of paper.

Laws are made by bureaucrats, largely if not entirely cis, who have little to no experience with the oppression that trans people face. So even when the “best” sorts of laws are made by the state they are often woefully unprepared to tackle oppression that we as trans folks are confronted with every day.

For the trans community in particular the state has been wholly inadequate in defending our rights.

And at worst it’s been our enemy.

Let’s never forget that.

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