LOS ANGELES, June 1, 2016 — Many view the effort to ensure transgender access to the bathroom of one’s choice as a continuation of the work of the Civil Rights Movement. Civil rights workers helped force the disintegration of the Jim Crow establishment and “separate but equal” doctrine some 60 years ago.
This is an argument for legitimacy by association with the moral triumphs of the past. The connection between yesterday’s struggles and the battles of today are more imagined than they are justified by reason.
The millennial generation and the advocates of social progressivism are not on the wrong side of history in the transgender controversy; they are completely ignoring history.
The sudden rise of this issue is striking, even in the midst of a chaotic presidential election election year full of surprises. Allowing people—even grade school students—to use the public bathroom of their self-identified gender rather than their biological sex was and is a fringe concept of the left.
President Obama and leading figures in government and business, including both Hillary Clinton and Donald Trump, now support transforming laws across the nation to accommodate this fringe concept, in the name of equal rights.
In spite of this concerted push, most Americans find gender-by-choice a bizarre idea. Once you get past the shocking change it represents, however, it makes sense when linked to the compelling rationale that obtained the morally definitive victories of the Civil Rights Movement.
That rationale was based on the conviction that racial segregation in the United States was inherently unconstitutional—contrary to the 14th Amendment—because the doctrine of separate but equal was inherently unequal. That was clearly stated by the Supreme Court. If prohibiting transgenders from using the bathroom of their choice (enforced gender separation) is analogous to racial separation in the Jim Crow era, then we might conclude that there is no real difference.
If the problems are the same, their solutions are the same: integration, now as then.
At first glance, the idea that biological men should be allowed to use woman’s bathrooms and vice-versa is absurd, but the apparent precedent for a civil-rights line of argument is clear. If we look further, however, we begin to see that while both situations do involve the issue of segregation, the transgender issue does not involve the problem of inequality.
When examining the case in favor of allowing gender separation based on biological sex to stand, the truth is that what is separate is entirely equal. To ask for more than that is to ask not for equality, but for privilege.
Those of us who did not live through the era of racial segregation have all seen those harsh photographs of whites-only and coloreds-only restrooms and drinking fountains, and are fully aware that many aspects of American life were segregated, ranging from union membership, to schools, to housing and other areas as well. In each of these cases, segregation yielded not merely an unequal but a degraded quality of life for African-Americans of those times.
The photographic images of the bathrooms themselves illustrate this point vividly. It’s not likely that separate but equal would have proved to be the problem it was if colored restrooms weren’t the unkempt, neglected cesspits that they almost universally were in comparison to white restrooms.
More importantly, if black schools had been equally funded with white schools and if blacks had been treated with equal respect as whites in spite of these separate facilities, the abolition of segregation would not have possessed enough moral urgency to transform it into a compelling human rights issue.
Today, the vast majority of us would agree that racial integration is socially desirable, acknowledging on the other hand that even if it were applied with the best of intentions, it would still have proved problematic for government and society in many ways. Nevertheless, if we whittle the racial segregation issue down to bathrooms alone and fast forward to our own era, any parallels do not hold. While we cannot deny the that the genders are segregated when it comes to the traditional allocation and use of bathrooms, we also can’t deny that these facilities in the main, while they may be separate are still equal.
Transgender individuals are not consigned to separate and unequal facilities. Male and female restrooms are equitable. The perception of inequality comes from the desire of some people to have societal definitions of man and woman conform to their own personal, subjective identification with one gender over the other.
The question then becomes whether or not society on the whole — or throughout the public school system as the President is now insisting—be made to conform to the subjective redefinition of widely accepted fundamental concepts by an infinitesimally small minority.
If society bends in this way, violating the consensus not merely of people throughout history but of present day Americans by yielding to the will of the tiniest of minorities, a subsequent policy in that direction cannot be called an exercise in equality. It can only be described as the establishment of privilege.
For that is what it is.