Over the past two years, people on both sides of the aisle have been strangely obsessed with bathrooms, especially as they pertain to transgender people. "Bathroom bills" — bills that attempt to legislate which restrooms transgender people can and cannot use — have taken up an impressive amount of time and legislative attention, and often seem heavily divided on partisan lines, with libertarians awkwardly hovering in the camp of "do whatever you want" (as usual). Last week, Texas senators debated whether they should move forward with bathroom legislation.
My vote is no.
S.B. 6, which did not pass in Texas' most recent session, would have used "biological sex" as the standard for deciding which bathrooms people use when out in public. Now, in this special session, the issue has been revived, and legislators are questioning whether an individual's gender identity or their "biological sex" should be used to decide which bathroom to enter. Other than the obvious issue of this being extremely difficult to enforce without invasive strip searches, there's another glaring problem: Creating legislation for such rare instances is a bad idea, and antithetical to what the Framers intended.
Of course, the Framers didn't sound off about trans people, to my knowledge. But they did have a strong vision of limited government, designed to protect people from severe threats but largely leave them unhindered to live their lives as they saw fit. The 10th Amendment reserves powers "not delegated ... nor prohibited" by the federal government to the states, so one could reasonably make the argument that it's fair for the states to pursue bathroom-related legislation if it's aligned with constituents' interests. But it's strange that, for issues where little to no demonstrable harm is present, we turn to legislating.
So far, there are no publicized cases of trans people attacking others while in the bathroom.
As of 2015, "Spokespeople from the Transgender Law Center, the Human Rights Campaign, and the American Civil Liberties Union told Mic that no statistical evidence of violence exists to warrant this legislation." But so far, 19 states (and the District of Columbia) allow transgender people to use the bathroom that makes the most sense given their gender identity, and there's been no uptick in attacks — in fact, there haven't been any widely-reported issues. Maine has had progressive policies like these for years, as CNN reports, and hasn't had any increases in problems with bathroom violence.
Transgender people attacking others in the bathroom is basically a made-up scenario. So why are legislators wasting valuable time debating it?
There's also an economic side to the issue: Texas is a crucial state for businesses to operate in. It's appealing to workers because there's no personal income tax and it's appealing to businesses because it's home to many large metropolitan areas––Dallas, Houston, and San Antonio, for example.
When S.B. 6 was being considered, CEOs like Mark Zuckerberg (Facebook) and Tim Cook (Apple), among others, signed a letter urging legislators to vote against such potentially-harmful legislation. The letter wasn't made public, but Dallas Morning News reported that the CEOs wrote, "Our ability to attract, recruit and retain top talent, encourage new business relocations, expansions and investment, and maintain our economic competitiveness would all be negatively affected."
If top CEOs fear for their economic prospects in the state, is it really worth pursuing?
It's strange that Texas Republicans would pursue legislation that's unpopular among major businesses and flies in the face of their alleged limited government origins. And, even worse, it's unfortunate that they're choosing to make such a big issue out of something that hasn't caused significant (or any) harm. Legislating against theoretical problems is foolish, and debates like these are likely to marginalize transgender people more.
Let people do what they want as long as they don't hurt other people.
Liz Wolfe (@lizzywol) is a contributor to the Washington Examiner's Beltway Confidential blog. She is managing editor at Young Voices.
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