One of the most important insights of both the classical liberal tradition and the new and the growing (and not necessarily classical liberal) multi-disciplinary study of social norms is that the state is not the primary source of social order. Most of social life is governed by moral and legal conventions not created by the state. An important failure of the social contract tradition is to fail to recognize the order that can flow from norms that aren’t state imposed, so the social contract tradition, going back to Hobbes and Locke, looks for political solutions to all or nearly all social coordination problems, when many are easily solved by (often unarticulated) non-legal social practices.
Perhaps this insight applies to the current brawl over transgendered access to bathrooms, as raised by North Carolina’s HB2 bill. Conservatives worry that, without a law, non-transgender persons are going to pretend to be transgender in order to be clandestine voyeurs in public restrooms, and make many families uncomfortable having their children use public restrooms. The law was passed, as I understand it, in response to a law passed by the Charlotte City Council that provided protections for transgendered persons to use public restrooms based on the gender with which they self-identify. Progressives, I expect, will support laws of this sort nation-wide, not allowing a variety of groups to discriminate when it comes to the use of public restroom facilities.
I say both sides are a bit too trigger-happy when it comes to the use of the law. Both are worried that, without the backing of state coercion, societies lack the social power to solve these problems adequately. But social conventions may be able to take care of the problem. Imagine, for instance, that you’re a mother in a public restroom with your five-year-old daughter when a sketchy-looking “man” enters the bathroom, stands behind you, and waits for you to finish up. This is bound to make many mothers extremely uncomfortable. On the other side, the “sketchy-looking man” may be a transgender female (someone assigned male at birth, but who identifies as female) who feels uncomfortable making herself physically vulnerable around men in the men’s bathroom. In both cases, someone is going to be uncomfortable and upset.
That is, until enough of these encounters occur that people work out a norm that solves the problem, a norm that we might not be able to discern without real-world social interactions. Perhaps mothers complain, leading a transgender woman to say, “I’m transgendered, and I’m just as uncomfortable around men in the men’s bathroom as you are.” Some women might respond by insisting that the transgender woman is lying, but most people won’t want to second-guess someone who would admit that to a stranger. I expect that, within a few years, a norm would develop that leads people to presume that someone who appears male who enters a woman’s restroom is a transgendered woman. If someone is suspected of voyeurism, then that too could be resolved socially, perhaps with a “You seem to be staring at us. Please stop.” And in the case where some party was concerned about the use of force, the authorities could be notified, but that’s already a norm.
The problem of transgender men entering men’s restrooms is, I think, much less worrisome. Most men aren’t worried about women voyeurs, and while they might be uncomfortable by the presence of a person who appears to be female, it is a fine assumption that very few women would put themselves in that uncomfortable position unless they were, in fact, transgender men.
It’s not like such norms are hard to imagine. Men who look like women enter men’s bathrooms now, and women who look like men enter women’s bathrooms. But we deal with it. There aren’t many transgendered people, so the experience of most people will be entirely unaffected.
My point is that legal solutions to this discomfort might not be necessary. Social norms themselves might be able to solve the problem. We might not need the Charlotte law or the North Carolina law.