Why are lawmakers fixated on where children use the bathrooom?

BY STEVE NUZUM

As I write this, the South Carolina legislature is rushing through legislation (House Bill 4756) that would defund school districts and colleges which allow transgender, binary, and gender-nonconforming students, staff, or members of the public to use bathrooms and changing facilities that align with their gender identities. It has passed the House, then passed a vote in the Senate, where it was amended. It is, in other words, very close to passing. 

I’ve already written at length about the obvious harms of these bills. 

Bathroom bills invade the privacy of children and adults. They put LGBTQ+ people at greater risk for serious mental health issues, bullying, and physical violence. They make both LGBTQ+ people and non-LGBTQ+ people uncomfortable, because forcing people to use bathrooms and changing rooms they don’t feel match their genders potentially makes everyone uncomfortable. And they violate the rights of children and adults who are simply trying to access public restrooms and changing rooms. 

They also directly target an extremely small number of children and adults for discriminatory treatment, while playing into the very rhetoric that makes them less safe and more open to further discrimination. 

According to the Williams Institute at the UCLA School of Law, around 3.2% of youth and about 0.7% of adults in the Southern United States identify as transgender. In South Carolina, it is likely that an even smaller percentage (often estimated as 2% or less) identify as transgender. 

This means that, for example, at my former public high school, which had a population of around 1,800 students, there were statistically around 36 students who identified as transgender. Of these, even fewer were likely out, and fewer still were publicly transitioning, so the number of students actively using a bathroom or changing facility that did not align with their sex assigned at birth was likely very small. 

And, as I’ve written before, this very small number of students is not associated with harms to other students; they are far more likely to be the victims of harm, especially when they are not allowed to use the facilities of their choice.  

Making the decision on which restroom or changing room to use can be a way of staying physically safe for many children and their families. The state legislature, by forcing school districts to comply with the current language of the bill, would be once again inserting itself forcefully into the business of children and families. 

And it would be making the employees of public school, universities, athletic facilities, and other public facilities, responsible for investigating whether or not individuals are using the bathrooms and changing facilities in a way which does not meet the General Assembly’s unscientific definition of “biological sex” (a definition that both contradicts the definition of most US medical associations and patently excludes people who are intersex).  

But it’s worth asking why legislators remain so obsessed with where children and adults go to the bathroom and change their clothing.

Many of the sponsors of H. 4756 are members of the state “Freedom Caucus,” a group of legislators that mainstream Republicans and Democrats have frequently accused of passing “stunt” bills, and of pushing nonserious legislation. 

In committee, one of the bill’s main senate proponents has been Richard Cash, a legislator with a long history of animus and/ or confusion towards LGBTQ+ South Carolinians. 

Cash has called the movement for LGBTQ+ rights “the downward spiral of our society” and has publicly opposed same-sex marriage rights, which most Americans consistently support. This session, he has sponsored a bill that would require courts to show preference in custody cases to parents or guardians who refuse to accept children’s transgender identities. (Cash has also undermined proponents’ “parental rights” rhetoric by arguing that parents should not be able to help their children decide whether or not to access birth control, though his sponsorship of a bill making parents the only decision-makers for child health decisions muddies the waters even further.) 

Given the opportunity to address the concerns of Senator Brad Hutto, who questioned how public entities could enforce the bill without stationing employees at the entrance to every school or other state-funded bathroom to “check” the gender of children and adults, Cash instead introduced an amendment which merely allowed that enforcement “may” include signage reminding people of the state’s anti-trans position. In any case, the amendment which would do nothing to help schools enforce the bill without exactly the kinds of “checks” Hutto was concerned about. The amendment also reduced the number of “single-user” facilities (which could have accommodated transgender people) required by the bill. 

And South Carolina Moms for Liberty has, predictably, claimed the bill provides “protection for women and girls” in a recent email to followers, though they did give the wrong bill number, conflating 4756 with 4757, the “parental rights” act they have also championed (while proudly proclaiming that 4757 was written by the anti-trans Alliance Defending Freedom. (ADF has been labeled a hate group by Southern Poverty Law Center.)

Generally, though, it’s virtually impossible to believe that SC legislators, who have heard hours and hours of testimony from experts, and from some of their colleagues, about the practical harms of ant-trans legislation, and who have been consistently unable to point to any actual cases of harm caused by students using the restrooms of their choice, really believe they are protecting South Carolinians or their privacy. 

Indeed, in the same committee hearing where Hutto raised his concerns, no member could point to any specific examples of LGBTQ+ students causing harm, or even discomfort, to other students by using the restrooms of their choice.

But stoking fears of LGBTQ+ students and other citizens, they seem to believe, will serve them politically. And, even more cynically, they may believe that because transgender people do make up such a small part of the state, and of the voting population, they will not be alienating a large number of constituents by targeting and defaming them. 

It’s also telling that so many anti-trans measures have been framed broadly as protections of privacy, protections of women (multiple “Save Women’s Sports” acts), and protections of “parental rights” (with this year’s major “parental rights” bill, which was written by Arizona’s anti-trans Alliance Defending Freedom, requiring school staff to out LGBTQ+ students). It’s worth unpacking what lies beneath the rhetoric behind the current bill.

H. 4756, like its Senate counterpart S. 199, is entitled the “South Carolina Student Physical Privacy Act”. 

This title seems designed to suggest that student privacy is somehow under threat from transgender people. It also may be designed to misdirect from the obvious threats to privacy it creates. Multiple incidents throughout the country have already demonstrated that when it is up to the public, or to public employees, to keep people from using the “wrong” restroom, invasions of privacy result. Even people who match the law’s definition of “biological” women or men have been stopped, harassed, arrested, or attacked because other people believed they were in the “wrong” facility.

And applying this practice to children raises additional obvious and troubling issues that have not been addressed adequately by lawmakers. How will school staff, in other words, “prove” that children are using the “correct” bathrooms?

How much support do “bathroom bills” really have? 

Recent polling shows that while a slight majority of Americans have become more supportive of some restrictions against transgender people in recent years-- likely due at least in part to charged anti-trans rhetoric from officials-- most Americans also support “policies aimed at protecting trans people from discrimination in jobs, housing and public spaces.” Another recent poll found that most Americans simply don’t want officials focused on trangender issue, while even more supported adult access to gender-affirming care. 

And this is where the rhetoric emphasizing “privacy,” “safety,” and “parental rights” seems intended to further drive in the wedge, to push well-meaning people away from acceptance of their neighbors and toward policies which are likely to harm them. And since most people generally support LGBTQ+ rights, anti-LGBTQ+ officials have to use Lee Atwater-style “dirty tricks” to make a civil rights issue (access to public facilities) appear to be an issue of protecting children and society from a scapegoated minority (transgender people). 

Even if we can’t agree as a society on how to give all kids what they need-- safety, support, and equal access--  I hope we can at least agree that we aren’t going to do it by singling out a small subpopulation that has statistically harmed no one, and making it so they can’t safely go to the bathroom at school. 

For my part, I’ll be doing as the South Carolina ACLU recently suggested: 

“You can still help reduce the harm of this bill. Use this form and we’ll connect you with your state House representative. Ask them to insist on the House version of the bill, which is less harmful than the Senate version. Call Your Lawmaker, Take action now!”