In response to my post on transgender issues, I was sent this in an email, by a very good economist, it is lengthy so I am putting most of it under the fold, but do please read the whole thing.

A little background about me: I am one of three (to my knowledge) “out” trans* economists, and one of two “out” trans women. As such, I have followed the debate about trans* people since I was young, since this debate is about my very survival. In addition, I think that it is useful to look at this debate through the lens of economics and moral philosophy, since that lens helps us to see some of our blind spots.

I would like to make a few observations in order to summarize this debate, and to use this summary to push for a fourth alternative–a sort of Hayekian alternative, which involves building upon the spontaneous order that we already have. This is assuming that there will always be a legal definition (or several overlapping definitions) of gender, ruling out option 1. Option 2 (overlapping definitions) is already a reality, which we can use to build on. Seen in that light, option 3 (the current debate) seems like a step backward, driven by emotions rather than reason.

First of all, I would like to thank you for contributing to this debate and for consistently sticking up for trans people and LGBT people more generally. We need more people like you who can engage in good, reasoned debate.

The facts are as follows. Trans people have been going to the bathroom or using changing rooms since there have been trans people, which has been basically all of human history. This has led to a kind of tacit order in which people use bathrooms according to the binary gender nearest their own gender presentation, and this has led to no problems for the majority of the cis (i.e. not trans) population. In my own experience, the problems that trans people have faced using the bathroom are in direct proportion to the degree that one is read as trans. In my case, I tend to get read as “German lady,” and I have never had a problem using the women’s room or locker room. I know people who have had problems–this is especially a problem for trans men, butch women, and very androgynous-looking people. This has become more of an issue as people with non-binary gender identities and presentations have started to become more visible.

However, the increased visibility of trans people, the success of the LGB part of the LGBT movement, and a sense that trans people are scary deviants have led to some of the backlash that we see. This backlash is strongest among people who are just learning about our existence, or among those who think of us as sex objects–objects of desire but also of danger to their sense of masculinity or to their sense of the natural order of things. My own guess is that these people are projecting some of their own hang-ups on to us. Importantly, this backlash has been coordinated in the background by some anti-trans groups–look at the same, clunky language featured in each of these bathroom bills–and this backlash has aimed to drive trans people entirely from public spaces. I would argue that this backlash is motivated by fear and disgust, and these emotions can’t be reasoned with. However, they can be reasoned around.

To see what’s gone wrong, let’s start by looking through the lens of Jonathan Haidt’s moral foundations theory, which is a bit like a modern-day version of virtue ethics. Haidt identifies six moral foundations, which closely map on to the classical virtues: (1) care/harm, (2) fairness/cheating, (3) loyalty/betrayal, (4) authority/transgression, (5) sanctity/degradation, and (6) liberty/oppression. Each of these moral foundations has implications for the debate surrounding the rights of trans people to exist and to be seen in public. Furthermore, these foundations motivate a lot of the, um, motivated reasoning that we see. Let’s focus on the main motivations for the backlash, which have to do with (4) and (5). Basically, they think that we’re disgusting, disordered perverts.

To understand (4), let’s turn to the language of all of these bills. These bills cite three separate definitions of sex or gender, none of which necessarily lines up with any other. These definitions are gender assigned at birth, the gender on one’s birth certificate (which can sometimes, but not always, be revised), and one’s chromosomal makeup (which is not usually observed at birth). All of these definitions are based on the idea that trans people transgress some kind of divine or natural authority, and that we need to bring them back into line. These definitions do not allow for people to medically transition–trans women with vaginas would have to use the men’s room and trans men with penises would have to use the women’s room–instead they amount to an admonition of, “man up, faggot.” Not surprisingly, some of the leading of these advocates of these bills have been evangelical organizations and advocates of “reparative therapy” (i.e. imprisonment and/or torture) for LGBT people.

To understand (5), let’s turn to the other main justification given by the (mostly male) supporters of these bills: to protect their wives and daughters (not so much sons, I wonder why) against using the same restrooms as us. This is because they see trans women in particular–even those with vaginas–as filthy deviants whose presence is inherently degrading, while they see trans men as an amusing curiosity, if they see trans men at all. Think of the main ways in which trans women have been depicted over the past 30 years in film–as cannibal serial killers, as something to throw up at, as sexual predators, and as dead bodies found in dumpsters. Literally as trash. The current backlash feeds into a lot of these tropes, particularly the sexual predator one, while if anything, trans women have a lot more to fear from straight men, and straight men have a lot more to fear from high-school wrestling coaches turned Republican politicians.

(Meanwhile, the model response I’ve received from other women has been, “so what?”)

These are the two “moral foundations” generally used to oppose letting trans* people use the restroom. While the anti-trans movement also sometimes uses the language of care (saving us from ourselves, which has been discredited since the work of Harry Benjamin in the 1960s) and liberty/oppression (seeing themselves as the aggrieved victims of political correctness or axe-grinding about “World War T”, particularly on the alt-right), their hearts are not really in it.

So, how should the law respond to recognize the genders of trans people, while also dealing with those marginal cases of women with penises or men with vaginas using the locker room, and at the same time trying to defuse some of the violent hatred faced by trans people? Let’s start by recognizing that this is all complicated, and that the law is a blunt, often violent instrument. No single legal definition of gender can cover all relevant cases. Instead, we can build on what we already have, and we can maybe even make things a little bit easier. Furthermore, the best thing that we can do is sit back, take a deep breath, and let our emotions cool down a bit. High emotions make bad decisions.

To start, we currently have a tangle of federal, state, local, and extralegal definitions of gender. For the federal government, the genders on one’s social security card, passport, selective service registration, etc., may all differ from each other. Add to that state drivers’ licenses, state IDs, voter IDs, original and/or revised birth certificates, university documents, tax records, and whichever gender someone reads me as while showing me to the restroom. For some people this even varies over the course of the day. Some states allow for a change of legal gender (such as California), while other states deny that legal gender is really a thing (such as Illinois). On the governmental side, this setup is inconsistent and a bit Kafkaesque, although I personally have had enough resources and luck to successfully navigate that system.

Most countries get around this by having a centralized personal registry (Germany’s Personenstandregister, for instance, which is simple but difficult to change, or the Danish version, which is easier to change). For Americans, setting up a centralized registry and/or national ID would represent a significant intrusion in personal liberty, and it would further complicate our patchwork system.

However, there are things that can be done, like making it possible to leave one’s gender on an ID or passport blank (or a third option ‘X’), as Australia and India have done. And, at the state and local level, a lot can be done to remove hurdles to getting proper documentation. Here would be where a Personenstandregister would make sense, with full faith and credit applied for all federal documents. People would be able to change their register entry by affidavit, as in Ireland or Denmark. However, there would likely be some civil rights issues in the ways that certain states would apply this idea.

The idea here is to remove bureaucratic hurdles and especially not to involve the police, which can be very dangerous for trans women in particular–particularly those who are black, Latina, disabled, involved in sex work, or poor. Current practice in many jurisdictions is to arrest visibly trans women on sight and charge them with “manifesting prostitution,” or to charge _them_ with a crime when they call the police for help, as in the case of a black trans woman in Minnesota who defended herself from an attack by a drunk Nazi. Or there are cases where the police fail to prosecute murder or attempted murder against trans women, and in fact, they sometimes collaborate with murderers. We need to do more to actively combat this type of bias and to reduce the amount of contact that trans people have with a biased legal system.

All of this can be done while realizing that our binary gender system is just a shorthand model that people use to navigate a more complex world. Since this world is complex, day-to-day decisions are best made at a low level, which is why Gov. Daugaard vetoed South Dakota’s bathroom bill. A good motto for this would be, “Get the government out of our bathrooms.” This approach is Hayekian at its heart, and it can even appeal to a large number of right-thinking conservatives.

For instance, my conservative Republican father managed a trans woman employee a few years ago, well before I “came out”. This woman had to use the bathroom and locker room at work. To make this work out, the company called a meeting of all of the female employees, and they led a respectful conversation about what was going on. This effort resulted in the other women accepting the trans woman as one of their own; she got to use the locker room; and nobody felt threatened or disgusted. It was a win-win for everyone involved, and it also sent a positive message.

We need more, not less, of this kind of virtuous approach.