Two Forms of Segregation: How Transgender Discrimination is Similar to and Different from Racial Segregation

By Doctor Comrade

North Carolina's governor Pat McCrory just helped rush through H.B. 2, a state law that exempts LGBTQ people from nondiscrimination protections and bans transgender people from using restrooms that don't align with their assigned-at-birth gender. In a clear act of transphobic segregationism, North Carolina overturned local ordinances that allowed transgender people to use restrooms in accord with their gender identity. Now, transgender people must use restrooms according to the sex listed on their birth certificate.

The LGBTQ rights struggle has been widely compared to the African-American civil rights movement of the 1960s, and it's hard not to see the parallels between minority groups fighting against dominant cultural norms and legal rules that prevent them from having full equality: many LGBTQ people face rampant discrimination and segregation from heteronormativity; blacks and other people of color face rampant discrimination and segregation from racism. North Carolina's new law perfectly exemplifies this comparison: in effect, the legislature and governor have codified "men only" and "women only" restrooms similar to the "whites only" restrooms of the Jim Crow South.

However, there are important differences between this law and Jim Crow laws that underscore why the struggle for transgender rights is taking place over private spaces. In general terms, many Jim Crow laws affected black people's access to public accommodations, like schools, train cars, water fountains, and restaurants. They were forced to live under the regime of de jure segregation, where segregation was legally codified and restricted only by the "separate but equal" doctrine established by the Supreme Court in 1896. But what became obvious was how public life was certainly separate but in no way equal. They also faced de facto segregation, for instance when black students were harassed after Brown v. Board and when black families were prevented from living in certain neighborhoods by associations of white homeowners.

Similarly, these anti-trans laws are a form of de jure segregation because they codify restrictions that affect access to public accommodations by forcing trans people to use facilities they do not want to use. The result is also de facto social segregation, where trans students may be afraid to attend school, trans people may avoid going to restaurants or other public spaces because they don't wish to go in the wrong bathroom, and trans women may avoid socializing with cis-women.

But these laws differ from their racist predecessors in one important way: LGBT people can hide in plain sight, people of color cannot. That's what makes this kind of discrimination particularly insidious: it calls for an unprecedented level of government surveillance. Enforcement comes from the shadows, from the government's peeping eyes and civilians' surreptitious observations, from turning neighbor against neighbor as those civilians who would enforce the ban turn their gaze upon the genitals of their peers. Violators of Jim Crow laws were obvious; violators of H.B. 2 are far more subtle. And because violators do so only in the most private way, it calls on observers to breach their most private space.

What seems clear is that opponents of inclusive bathrooms irrationally fear transgender people. When Houston's inclusion ordinance was defeated by voters in 2015, it came after a horrific fear-based campaign by social conservatives to protect women and children, despite having no evidence that trans people or harassers had ever used the non-discrimination ordinance as cover to assault anyone. The state has no compelling reason to restrict the rights of transgender people, that much is clear. However, for opponents of inclusive bathrooms, the question has never been about rights, it has been about comfort. What kind of people are they comfortable sharing the restroom with?

It is impossible to police gender comfort. Jim Crow made segregation easy: any non-white person had to use different facilities or risk violence. The evidence of their intrusion was as obvious as the color of their skin. But transgender people are not nearly as obvious. Many people who have received gender affirmation surgery or hormone treatments are indistinguishable from people who maintain their gender assignment. And many people who have not undergone gender affirmation treatments are still transgender and therefore "different." If some people are uncomfortable sharing space with transgender people, how far do we have to go? If our society insists on separating transgender people from cisgender people in bathrooms, then shouldn't it also separate gay men from straight men, gay women from straight women, and so on? Should we have six different kinds of bathrooms: straight men and women, trans men and women, and gay men and women? How much credit are we supposed to give to the irrational fears in transphobia and homophobia? What if people are uncomfortable being next to sex offenders, should they get their own bathrooms too? What about any criminal? How many bathrooms do we have to build until social conservatives are finally comfortable peeing around other people? And more importantly, why should we allow their slight discomfort to restrict the rights of anyone else?

It's important to remember that some people who call themselves feminists also oppose inclusive bathrooms. For example, Cathy Brennan argued that "women have the ability to have our own spaces away from males and male-bodied people, which includes trans women." Why? "The proliferation of legislation designed to protect 'gender identity' and 'gender expression' undermines legal protections for females vis-a-vis sex segregated spaces, such as female-only clubs, public restrooms, public showers, and other spaces designated as 'female only.' Females require sex-segregated facilities for number of reasons, chief among them the documented frequency of male sexual violence against females." However, this is a widespread myth that has been debunked. Media Matters for America found that experts from twelve states with non-discrimination statutes said that fear of sexual assault from trans people was an "unsubstantiated fear" with "no factual basis," and bathroom panic was nothing more than an "urban myth" perpetuated by the media.

My position should not be confused with dismissing legitimate concerns about rape. But we should keep in mind two salient facts: first, the kind of men who rape women have no regard for the law anyway, and the sign on a bathroom door will certainly not stop them, and it hasn't stopped them in the past; and secondly, fear of rape was often used as a justification for Jim Crow laws. According to historian Estelle Freedman, racism structured the law to deny full citizenship and participation to African-American men by contending that they were rapists. Similarly, we see heteronormativity structuring the law to deny full citizenship and participation to trans women by alleging that they will commit grave acts of sexual violence against cis-women.

Because the fear of trans women is so irrational, there is no clear bright-line to distinguish between who gets to go into which bathroom. The objection is clearly not about rape: there is no evidence to suggest that trans people have exploited non-discrimination laws to enter women's bathrooms or assault women. That means these laws are justified by ignorance and malice, passed by bigots and segregationists, and enforced by transphobes and fearmongers.

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