It is unsurprising that HB2, the statute passed in North Carolina in March, requiring transgender people to use bathrooms corresponding to the gender listed on their birth certificates, has met with widespread condemnation. This opposition has come from such diverse quarters as major corporations, certain Republican politicians, a number of public individuals and a plethora of LGBT advocacy groups. Unfortunately, some of these advocacy groups are attacking this measure by pointing out how ludicrous the measure is by parading transgender individuals who pass, i.e., who are indistinguishable from cisgender people of the gender with which they identify. These individuals are the least likely to be challenged as nobody can tell that they are transgender unless they advertise the fact. Therefore, these efforts do not adequately address the issue as those of us who do not pass are the ones who are really affected by such laws.
Recently the advocacy group Freedom for All Americans published an ad that illustrates this point. The ad features Zeke Christopoulos, a photogenic transgender male from North Carolina who passes. The fact that he is transgender is irrelevant. Unless he carries a sign proclaiming that he is transgender, nobody at all is going to raise an eyebrow if he enters the men’s bathroom. It does not matter one iota if he has had the gender marker on his birth certificate changed or had gender reassignment surgery. The general public perceives him to be male. Caitlyn Jenner’s recent publicity stunt where she entered a women’s restroom in Trump Tower is similarly ineffective at addressing the issue. Even if she were not a high profile public figure, she also passes and would not be challenged for entering the women’s restroom.
The population that is adversely affected by these laws is those transgender individuals like me who do not pass. Although I am routinely recognized and addressed as female, it is evident that I am transgender. Even in a generally tolerant place like New York City, enough people look at me askance when I enter a women’s restroom that I try to avoid them unless I am accompanied by other women. The fact that my birth certificate and every other form of identification that I own states that I am female is irrelevant. In jurisdictions where this sort of discriminatory legislation is in place, I would be at risk of arrest if I were to use the women’s room. I would have to carry my birth certificate around with me to demonstrate to the police that it identified me as female. I imagine that even then the authorities would be unhappy that I was compliant with the letter rather than the spirit of the law. On the other hand, using the men’s room would put me at personal risk of aggression or assault by men intolerant of my gender identity. My only option then would be to locate non-gendered restroom facilities.
The smugness of the statements by passing transgender persons that these laws are risible is, quite frankly, offensive to those of us who do not. For us, these regulations are ludicrous only on an intellectual level. There is no evidence to suggest that we are likely to harass or assault anybody whilst using the bathroom or that incidents of harassment or sexual assault have increased as a result of allowing transgender people access to to the bathrooms of their choice. Still, we are the ones who are targeted by so-called bathroom bills. I am really happy that people like Mr. Christopoulos do not have to worry about discrimination when entering the restroom, but advocacy groups really ought to be emphasizing not the ridiculousness of requiring passing transgender people to use bathrooms corresponding to their birth gender, but the real risks that non-passing individuals face when this sort of discriminatory legislation is enacted.