Toleration, Social Justice

On the Over-Politicization of Bathroom Norms

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.

Published on:
Author: Kevin Vallier
  • Fritz

    What is the meaning of “assigned male at birth”? Birth certificates don’t “assign” gender; they record gender. A person’s “feeling” that he/she is somehow “really” of the opposite gender is so easily faked that the sudden explosion of the transgendered population must be regarded with suspicion. If social norms were still operative in this age of rampant governmental intervention, the relatively few persons who are truly transgendered (and not living a media-inspired fantasy) would pass unnoticed because they would have adapted their dress and demeanor to conform to the gender to which they have assigned themselves.

    • “Birth certificates don’t ‘assign’ gender; they record gender.”

      They do neither. They record biological sex as visually perceived (which is correct most, but not all of the time — there are XX males and XY females).

      Gender is not the same thing as biological sex.

      • I’m inclined to say it’s very probably correct in those cases as well.
        If a person has female sexual organs but XY chromosomes, that person is recorded as female, which seems correct to me, at least by the sense of the word “female” that seems to be the most common in biology, very probably in common speech too.

        For example, many fish are described as changing sex during their lives (e.g., ), but they don’t change their chromosomes.
        Also, in some species, sex is determined by temperature, or sometimes temperature-determination overrides genetic-determination ( ).
        Generally, chromosomes-based determination is only one system of sex determination (, but “sex” seems to be tracking reproductive and sexual organs, not about chromosomes, at least in the most common usage of the term.

        In order for the recorded sex in birth certificates to be incorrect in such cases, the meaning of the words “female” and “male” in those certificates should be such that chromosomes determine whether a person is female or male, rather than sexual organs. But I don’t think that’s probable.

        • Interesting thoughts, but the thing about biological sex as perceived was an aside.

          Gender identity is not the same thing as biological sex.

          We tend to think that the binary gender classification system we all grew up with in America is some sort of natural law, but numerous societies have had different ways of thinking about and looking at gender. Our traditional way of thinking about the subject is nothing more than a social convention. And social conventions can change.

          • Sean II

            Numerous societies?

            Name a few.

          • The third gender in India, the hijiras (socially recognized for thousands of years, legally recognized recently).

            Pakistan’s khawaja sara, pretty much the same as India’s hijira.

            Pre-European Hawaii’s third gender, the mahu.

            The Incan third gender, the quariwarmi.

            The third gender of Madagascar’s Sakalavas, the sekrata.

            The Omani khanith.

            Japanese Xジェンダ.

            Filipino bakla, binabae, bayot, agi, bantut, bading and lakin-on.

            Thai kathoeys.

            The Uranians of Victorian England.

            In North America the Lakota wingte, the Blackfoot ninauposkitzipxpe, the Zapotec muxe.

            The idea of additional genders beyond male and female goes at least as far back as the beginning of writing with the Sumerian creation myth and the various types of people created and assigned roles by Enki, Ninma and Nintu.

            Binary male/female gender schemes seem to be PREVALENT, and to be DOMINANT even in societies which provide for additions to the social convention, but that’s no more significant than noting that more people like country and western music than opera. We don’t go around trying to decide who can go in what bathroom based on that, do we?

          • Sean II

            Thorough list.

            Next question: what percentage of humanity would you guess the above groups represent? Taking the denominator to be, say, everyone who’s lived since 10,000 BC.

          • Next question: How is that relevant to … well … anything?

            But the Indians alone have constituted a significant portion of the world’s population for all of recorded history, so we could start there.

          • Sean II

            It’s relevant because a stable low prevalence suggests that binary gender is robust, and therefore not just a social convention.

            And it looks like third genderism has a prevalence of [some single digit]/10,000.

            Which certainly does not suggest it’ll ever be the case that Kewpie dolls and urinal stalls will be laughed at, the way you’re laughed at now.

          • How does robustness = not just a social convention?

            And what makes you think I am laughed at?

          • Sean II

            1) Social conventions change easy, biology changes…hard. If something shows up at +99% prevalence in every age and culture known to us, it’s not a social convention.

            2) Not me, The Replacements. It just seemed likely that anyone who knows so much about transgenderism would know that song.

          • Yes, social conventions change easy, biology changes hard. Which explains why 300 years ago upper-class English males were wearing wigs, high heels and pancake makeup and now it’s women doing so, except when it isn’t. Gender is definitely a social convention. The only thing about it that DOESN’T change is that there are always people — sometimes more, sometimes fewer in different times and places — who fall outside of whatever binary scenario a culture may have gone temporarily insane enough to think is some kind of natural law.

            I’m no expert on transgenderism. Or on The Replacements, although I did listen to them some back in the day. I recall having an EP with “Waitress in the Sky” on it.

          • Sean II

            “Androgynous” is better.

            Mistake you’re making (and it’s a big one): powdered wigs and things like that were not a form of feminine gender expression.

            You’re confusing “X would be considered effeminate today” with “those dudes who did X 250 years must have been trying to express femininity”. But they weren’t.

          • Well, someone’s confusing some things. But it’s not me 🙂

          • Sean II

            What are we in middle school with that retort?

          • Not sure who the “we” you’re referring to might be. Only you know whether or not you’re in middle school.

          • Sean II

            That was even worse.

          • Please consider:

            Just because you are arguing, that doesn’t mean anyone else is.

            And calling what you’re doing “argument” is rather generous.

          • Speaking of generosity in considering what you’re doing to be “argument” —

            “You started with the idea that binary gender is nothing more than a social convention. Which means that other arrangements besides binary gender should be equally likely to occur.”

            Google “non sequitur.”

          • Sean II

            Nope. That follows quite clearly. It was you who chose the unnecessarily extreme phrase “nothing more than a social convention”. That “nothing more” gets us right to “other arrangements should be equally likely”. The implication is plain.

            Had you said “largely a socially convention”, I would have said “other arrangements should be substantially likely”; had you said “partly”, I would have said “somewhat”.

            But that’s the problem. Arrangements other than binary gender aren’t likely – not equally likely, not substantially likely, not even somewhat likely. What they are is extremely rare.

            How did you come to have an opinion on the subject that takes no account of this?
            And have you ever considered the possibility that non-binary gender expression is rare for the simple reason that it carries a massive fitness penalty? And if you haven’t, that is…if you’ve never even considered the basic biology relevant to a question like this, how do you justify having any strong opinion about biology’s role (or lack thereof as you have it)?

          • So let me see if I have this right: All social conventions are equally likely?

            If so, followup: Are you retarded?

          • Sean II

            See, there it goes again. You get desperate very easily. Are you asking yourself why?

            And, yes…if something is a pure social convention – like, say, what expletive we use when banging our knee – all possibilities start out equally likely. One group says “Oy!”, another says “Fuck!, another says “Crikey!”, another says whatever that Russian word is they always translate as “Fiddlesticks!”, etc. The word itself really is arbitrary. That’s what a pure social convention looks like.

            And again, not my fault you insisted on purity. Not my fault you said “nothing more than a social convention”. Feel free to back off that extreme position anytime you like. I’ve already encouraged you to do just that.

          • What you’ve encouraged me to do is treat your social prejudices as natural law.

            If you’re actually interested in one of the flaws in your (for lack of a better word) argument, let’s take this one:

            “Arrangements other than binary gender aren’t likely – not equally likely, not substantially likely, not even somewhat likely. What they are is extremely rare.”

            You’re conflating a rare thing (the percentage of individuals who identify as third, fourth, nth gender in any particular population) with a common thing (the percentage of human societies which, to one degree or another, arrive at a non-binary convention regarding gender).

            Speaking of social conventions, sex-segregated public restrooms seem to be about a century-old phenomenon in the US and to have become a phenomenon in western civilization at all less than 300 years ago. Is that a biological thing too?

          • Sean II

            Again. You did it again with the gratuitous attempt at provocation. And again I wonder: if your position is not weak, why do you need that? Why keep doing it?

            In any case…the reason why sex segregated restrooms emerged in the last few hundred years is because, for most of the population, restrooms only emerged in the last few hundred years.

            So that makes it an economic thing.

            Although…come to think: it’s very interesting that one of the first things people did when they reached a standard of living sufficient to put two toilets in a building, is to start segregating those toilets by sex.

            Now that probably is a biological thing – people spending scarce resource to obtain a luxury like that. Why didn’t they just make the toilets prettier, when they found themselves with more money to spend on toilets? Evidently because they valued privacy along gender lines more than other possible upgrades. In particular, in seems likely that this preference came strongest from women, given the obvious reasons why women would be more reluctant to share their accommodations with men, than men to share theirs with women.

            But more importantly: you didn’t respond to my point about the fitness penalty of non-binary gender expression. What do you have to say about that? Have you considered it?

          • I don’t know why you think I’m trying to “provoke” you. All I did was point out that gender identity is a social convention. If that fact makes you uncomfortable, that’s your problem, not mine. Facts are stubborn things.

            “restrooms only emerged in the last few hundred years.”

            In your imagination, perhaps. In reality, they emerged as soon as buildings did — and “public” restrooms emerged as soon as “public” buildings did. Yet sex-segregated “public” restrooms were unknown in the United States until the late 1800s and uncommon until the 1920s. And they’re still the exception in Europe. Victorian hangups aren’t natural biological law. They’re social conventions.

          • Sean II

            Thomas…come on now. Your attempts to lower the discussion are there for anyone to see. They range from the obvious -“Are you retarded?” – to the more passive-aggressive – “…in your (for lack of a better word) argument…”.

            Now you add playing dumb to that list, but even still I won’t respond in kind.

            I’ll just do what I’ve been doing you, and urge you to ask what kind of position needs to be defended in this way? What kind of a position leads you to call your opponent retarded in one comment, and then act like you have no idea what he means by “provoke” a short while later?

            Is it a strong position that needs help like that, or a weak one?

          • My “position,” as you call it, doesn’t need any “help.” You’ve yet to successfully call it into question.

          • Sean II

            Oh…so now you don’t know what the word “position” means. Another great sign of mature rationality at work, in the service of a strong argument.

            Your position is the one you clearly stated: “gender is definitely a social convention”…”nothing more”.

            That’s your position. Unless you want to back away from it, which you certainly should…because it’s really extreme and the evidence against its extreme version is really obvious.

          • I’m sorry. I didn’t realize that you were using the term “position” to mean “fact.”

          • I’ve considered the idea of a “fitness penalty” as such in the past. And concluded that references to such a thing indicate a complete ignorance of evolutionary biology.

            That some traits will lend themselves to reproduction and some won’t is a trivial observation, not an earth-shaking one. As is the observation that many traits which don’t lend themselves to reproduction as such will nonetheless persist as recessives.

            It wasn’t until you brought it up that I had to think about whether or not it was worth noting that the idea militates against, not for, your case. You’re the one trying to reify your idea of social conventions as natural laws. If there’s a “massive fitness penalty” to non-binary gender identity, and if gender identity is a biological imperative rather than a social convention, why do we still SEE it with regularity across cultures?

          • Sean II

            So are you admitting there’s a fitness penalty to non-binary gender identity, or are you denying it?

            Is it a trivial observation, as you seem to say in paragraph 2? Or is it an absurdity, as you seem to say in paragraph 3?

            The most common form of transgenderism is men who express as women. That carries a very obvious and VERY large fitness penalty, but I still don’t know whether you’re acknowledging that fact? Tell me.

            And since you ask: there are lots of reasons why non-binary gender identity would stay prevalent at its extremely low rate despite such a fitness penalty. Lots of possibilities, each worth investigating. If the rate is closer to the lowest estimates, it could even be de novo. Or some of it might be de novo, while some of it is just a highly expressed form of homosexuality. Or it might be the result of exposure to some yet undetected thing. Or it might be a bunch of different things.

            It’s a good question, and one we probably shouldn’t decide just by choosing the most likable answer.

          • I’m denying that the idea of a “fitness penalty” makes any sense at all in any context. Evolution is a process, not a sport.

          • Sean II

            Wait a minute, you just said this:

            “I’m denying that the idea of a “fitness penalty” makes any sense at all in any context.”

            You said that, and yet you have strong opinions about what is and is not biologically determined.

            I gotta rest my case here. That is among the fullest, proudest confessions of ignorance I have ever seen.

            You speak with certainty of matters you don’t understand, and you behave badly when questioned or corrected.

            Either one of those would be embarrassing alone, but the two together make permanent folly.


          • Have a nice day. I hear huffing out on a claim of intellectual superiority so that you can get home to wallow in your ignorance is quite a rush.

          • Ed Ucation

            Just because something is rare does not imply that it is because it carries a fitness penalty. There are many example of phenotype variations that have a neutral fitness:


            Oh, and funnily enough:
            “Gould cites the masculinized genitalia of female hyenas and the brooding chamber of some snails as examples of evolutionary spandrels.”

          • Sean II

            “Just because something is rare does not imply…it carries a fitness penalty”

            Of course not. Who ever said it did? Certainly not me. Many of the rarest things are fitness enhancing. Genius is rare. Extreme foot-speed is rare. And so on.

            What I said – or rather might have said, had Thomas been interested in a different kind of discussion – was that things with a major fitness penalty tend to be rare…and when they are not, they definitely need an explanation.

            The penalty for transgenderism is so enormous, it should be even rarer than it is. That’s interesting.

          • Ed Ucation

            What is the penalty for transgenderism? The inability to produce offspring? That is not necessarily a penalty under multilevel selection theory. Ants are one of the most successful types of organism on earth, and over 99% of ants are sterile.

          • Ed Ucation

            Following the discussion from the top, you, Sean, were the first to descend to the middle school level:

            “Which certainly does not suggest it’ll ever be the case that Kewpie dolls and urinal stalls will be laughed at, the way you’re laughed at now.”

            And I think you did that because Thomas thoroughly won the first argument.

          • Sean II

            That’s a lyric from a very famous song abou transgenderism. It wasn’t an insult. And when to my surprise I discovered that Thomas didn’t know that song, I explained it immediately.

          • King Goat

            “If something shows up at +99% prevalence in every age and culture known to us”

            Like religious belief?

          • Sean II

            Great example.

          • King Goat

            Yes, I honestly proposed it as one (and I’m not sure how I can have ‘mislabeled’ something that you then say doesn’t even have a name yet) because I’ve read some of the recent debate about it (the ‘God gene’ and such). Certainly something like religious belief seems to occur in most of the people in nearly all of societies in history. While a genetic explanation is interesting, I’m not sold on the matter. For one thing, I don’t think cultural universals must be explained by biology. There are plausible alternative explanations, such as memes (Dawkins and Blackmoor have some good stuff on this angle), diffusionism, and just the idea that different groups facing the same necessary need can unremarkably come up with very similar looking solutions. The human condition kind of sucks, in the end either we or every one we love will die. It seems natural to hope for and imagine some condition where that doesn’t happen (an afterlife), shared experiences like dreams probably help feed the idea that there can be some other ‘plane of existence’ like but not like ours where that happens, and it’s logical to think that since it’s not quite like ours it might have entities that live there or who made/maintain it that become our ‘gods.’

            I think the same thing is likely happening with the present matter of debate. I don’t think binary gender understandings are genetic of biological in the sense I think you do, but I do think that given that most human beings are born with either Set A or Set B equipment it’s quite natural for people to see this and then start ascribing all kinds of ‘correct’ behavior to each Set, seeing anything else as confusingly outside of those categories and often therefore being somewhat hostile to it.

            Of course, I don’t subscribe to the naturalistic fallacy, so even were it biological I don’t think it matters much as to the ethics of how people who identify as outside of those categories should be treated.

          • LLC

            Sean, third genderism is not, and has never been, exclusively a biological designation. One need not be a hermaphrodite to earn that apellation. Homosexuals are considered to be ‘third gender’ by many. And if we include them, the number become significant by anyone’s reckoning. They alone, even if we plug in the conservative estimate of 1.65% of world population comes to well over 115 million souls. Add to that the bisexual, the transgender and the biologically ambiguous, and we’re starting to look at some real numbers — certainly far too many to ‘write off” even if we were to be morally disposed to. Estimates across all mammalian species run even higher, ranging over ten percent for some. Giraffes are ‘standouts’ in this regard, as are those icons of masculinity, rams. They’re constantly jumping one another. Seems like for a God who hadn’t meant for this to happen, he sure did made a lot of them.

          • Sean II

            Sure, you could swell the ranks of the third gender by including homosexuals, but why would you?

            Most homosexuals express within the traditional binary? Some don’t, but not many.

            The right thing seems obvious when calculating the size of gender three: include the latter, not the former.

          • TracyW

            But “social convention” can be blurry. Eg, let’s take the distinction between adult and child. The exact boundary is a social convention, there’s nothing that suddenly changes at midnight between 17 years & 364 days old and 18 years old. There have been cultures that, say, set the voting age at 21, or the like. But there’s never been a society that made no distinction between the decision-making abilities of a 3 year old and a 33 year old. 18 years old is a social convention, but the basic concept of a distinction between childhood and adulthood reflects a real thing.

            Similarly with gender/sex. Most of the time, gender and biology lines up. There is however some blurriness, some hard cases, and social convention comes into play there.

            Also, it seems like people mostly have an innate sense of gender (think of that sad case of the boy who lost his penis in a circumcision and the doctor told his parents to raise him as a her, it didn’t take.) There’s something in many people’s brains that tell them what gender they are. Sometimes something goes wrong and someone’s body and thus society says one thing and their brain another, and this is very distressing. In those cases changing one’s body and/or socially transitioning seems to be the best treatment we know of. So, um, why not have a social convention that people can cross boundaries?

          • Sean II

            Sure, that’s a good example and a good analogy. And indeed what you propose is exactly what makes sense based on everything we now know:

            Step 1 – Admit that binary gender is substantially rooted in biology, and some – maybe even much – of what we see in terms of gender identity therefore isn’t going away.

            Step 2 – Protect vulnerable minorities who might be persecuted because they don’t conform to those identities/roles.

            Step 3 – Mitigate any other harms that come from the social enforcement of gender roles, and work to build a society where we don’t over-emphasize those roles, or exaggerate their importance.

            But note, Tracy, it’s really hard to do this if you can’t discuss Step 1 with people because they keep clinging to the fantasy that gender is entirely or even mostly a social construct. That insistence ruins the project, because it leads us to waste time fighting the things that won’t change (and making people miserable in the bargain), instead of focusing on the things that are changeable. It leads people to nurture mad dreams of androgynous societies that can never exist on a large scale (because of the fitness penalty), and leads them away from the hard work of helping people navigate a mostly binary gendered world.

          • TracyW

            I agree that it’s really baffling, and worrying, that suddenly people are talking about gender in terms of how you dress and how you behave, as opposed to what you are.

          • King Goat

            “It leads people to nurture mad dreams of androgynous societies that can never exist on a large scale (because of the fitness penalty),”

            That seems to go to far. Technology advances can increasingly ameliorate what would otherwise be stiff fitness penalties. The percent of men and women who opt for transgender identities could significantly increase and modern societies could still thrive.

          • Sean II

            The only thing that matters in the fitness game is having kids…who have kids, etc. Hims and hers are more likely to do that than zees and zirs. The obvious example tells the tale.

            In our world, Caitlyn Jenner had six children while she was Bruce. Very fertile looking bunch, too.

            But what if trans-awareness had made slightly faster progress, such that it was possible for Caitlyn to transition way back in 1970? In that case her number of offspring would be zero.

            Now simply imagine two societies, the Rets and the Mods. The Rets like to rock the traditional binary, so for the most part hims mate with hers to produce more hims and hers, and so on. The Mods are different. They succeed in making a radical new society, where fully 20% of people express outside the binary. The Rets in their quaintness go on having 2.5 children for fertile “woman”. The Mods have 1.5 children per uterus. Why? Because the non binary expressers in Modsland have almost no children, while the rest of the population has fewer opportunities, and less pressure to pursue them.

            Wait a bit, then swing back. If you time it just right, you can catch the moment when the thinly populated rump of Modsland gets annexed by backward thinking Restovia.

          • King Goat

            We’re K strategists, not r strategists, high fertility rates are indicative of Third World nations, not modern powerhouses. But you’re right that a fertility rate of under 2 can be a problem long term and that it *could* pose that problem if we had a significant amount of transgendered people, but I’m not sure it means it has to be. For one thing, you just need that average fertility rate to top 2, and if more people choose to be transgendered in Modsland if the place is a technologically modern society that might be offset by increasingly amazing modern fertility technology for those who aren’t. Included in that might be transgendered people, some of whom want and do have children (some before reassignment, and many don’t choose reassignment).

          • Sean II

            We’re not all K strategists, and not all the time. India and Africa didn’t hit a billion people by pouring it on in terms of parental investment; they did it by having lots of kids.

            Important to remember that r/K isn’t a dichotomous thing. It’s continuous. Americans in the 1950s? Robustly K. Europeans today? So damn K they’ve turned it into a non-strategy. Sub-Saharan Africa? A bit K-ish, but in a very r sort of way.

            We’re head the Euro way lately. We take 26 years to raise a “kid”, and then they wait another seven years to decide whether or not they’ll pass on our genes. That kind of parental investment doesn’t pay.

          • King Goat

            Hmm. I’ve always read of r and K as species-level classifications (so, elephants, K, cockroaches, r). The nine month pregnancy period and relatively long period of helplessness of human progeny makes any talk of human r strategy odd to me.

            Also, as I said, high fertility rates are what you find in floundering, third world nations. If you must see things in such ways, we take 26 years to raise a kid who decides to wait another 7 years to decide whether or not they pass it down, but who, piloting one F-16, could wipe out thousands of r strategy offspring in less developed nation no sweat.

          • Sean II

            “…I’ve always read of r and K as species-level classifications…”

            No, there’s a continuum.

          • King Goat

            Within a species? Of course the concept of r v K strategy is one involving a continuum with species across it, but the idea of some groups within a species being one and other groups being another is…odd. As I said, all human populations are going to have the 9 month pregnancy period followed by a period of relatively long period of helplessness, all of which would put them all way on the K side of the continuum. Even if some human groups were to have double the fertility rate of another one would be like a super, super duper K and the other a super duper K. It’s bizarre to talk of one as ‘r-ish.’

          • Lacunaria

            So, um, why not have a social convention that people can cross boundaries?

            Because that would violate the overwhelming purpose of gender social conventions, which is to distinguish biological males from biological females, ultimately for procreation.

            That’s why crossing gender boundaries often has an uncanny valley effect regarding attraction — people feel they are being deceived if a biological man presents as a woman.

          • Lacunaria

            The problem with your music analogy is that the binary male/female gender social convention serves a social purpose that is closely tied to biological sex.

            Perhaps once procreation is no longer a complementary binary biological process and other sex differences are normalized (such as strength, aggression, attraction, etc.), gender will be freed from the overwhelming binary biological basis.

            What I find curious is that the idea of a “third gender” seems to be wholly at odds with transgenderism. e.g. a biological man who identifies as a woman is strongly asserting a binary gender, he just wants to be on the other side of that coin. It doesn’t serve his purpose to be seen as a third gender and perhaps obtain a third bathroom. Indeed, lawsuits have been brought to specifically object to using a third bathroom.

          • TracyW

            Our traditional way of thinking about the subject is nothing more than a social convention

            That Barrack Obama is President is a social convention, and one that will change in, what, January 2017?
            That doesn’t mean that who is President, or if there is a President and not, say, a monarch, is unimportant. Social conventions matter.

            There is also evidence that some social conventions cannot be easily changed – attempts to make intersex people into one gender or another by surgery and assigning roles have tended not to work.

          • I didn’t say that social conventions don’t matter, or that all social conventions are easily changed. I just said that the social convention of the moment is not some kind of iron-bound natural law.

            I’d say this is particularly true of “bathroom norms.” Nobody really gave a rat’s ass about which bathrooms trans people used until opportunists of at least two varieties (“next victims of discrimination, COME ON DOWN! It’s time to play The Price Is Ostracism!” on the left and “hey, I bet I can REALLY scare the shit out of the rubes with THIS!” on the right) decided to start making political hay with it.

        • LLC

          Interesting, that in all your descriptions, you didn’t think to include the perceptions of the person inhabiting the body (presumably more deserving of weighing in on this than a fish).

          • Not interesting and also not surprising that you just display out-of-place anger and attack with the “Interesting” comment and the “more deserving” comment (which implies a moral fault on my part).
            It’s near impossible to discuss these matters on line in a serious manner, because the vast majority of people on both sides (you’re not an exception, but an example) just go on the attack (often for no good reason), instead of being rational about it.

            No, it’s not about deserving of anything. I was using evidence of common usage of the term “sex” in this context.

          • LLC

            My apologies if I misunderstood.

          • Apology accepted.

          • Sean II

            Right you are. Very many people are interested in discussing the matter, almost none are interested in treating it rationally, scientifically, etc.

            The dead giveaway: people get pissed if you merely ask a question.

          • M S

            Let’s not pretend at naivete here. This is the internet: trolls abound and everyone know this. Many (most?) of those “merely asking questions” are not actually interested in good faith discussion.

            Basic principles of charity state that we shouldn’t dismiss someone asking questions until we are confident they are a troll. But the same principles of charity say that you can’t assume someone is arguing in bad faith simply because their initial reaction to a question is to assume the asker is a troll.

            Nobody knows whether or not you’re actually an asshole except you. If you look like one, don’t pretend to be shocked when you get treated as one.

          • Sean II

            Reasonable principles, to be sure

            If Thomas had accused me of trolling once and then calmed down later, as the conversation developed, I would have forgiven and forgotten.

            But that’s not what he’s doing. Indeed, questions and calmly made points are what get the worst reaction from him.

    • TracyW

      I’m a bit disturbed by the idea that one’s gender mandates a particular mode of dress and demeanour. No one IRL has ever mistaken me for a man, regardless of what I wear or what I am doing. (And it amuses me that giving birth generally involves dressing and acting in about as unfeminine way as possible.)

  • Sarah Skwire

    I think that I don’t understand what you are envisioning happening in women’s restrooms.

    You write, “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.”

    Women’s restrooms are a series of stalls with doors that lock. Other than washing my hands, what would I be “finishing up”?

    I’m legitimately perplexed, in large part because all the discussion over bathroom laws tends to discuss bathrooms that are nothing like any bathroom I’ve ever been in. So…explain what you’re envisioning here?

    • Kevin Vallier

      I guess you’re right. I’m imagining someone standing in front of a stall where they can look in, but I guess in women’s bathrooms, there are far fewer opportunities for that than in men’s bathrooms.

      • Steven Horwitz

        And this suggests the obvious solution to this problem, which is to go to all-stall in all bathrooms. Suddenly, no peeking.

        I do find it interesting that the scenario that Kevin imagines bothers him, yet the way bathrooms work right now, he has no idea if the other men in the men’s room are gay and secretly checking him, or a child of his, out. To be clear – I’m not suggesting that gay men do this any more often than straight men do. What I am suggesting is that if one is worried about people using bathrooms as a chance to engage in sexual behavior toward children, or anything else that makes people uncomfortable, why we are we having this conversation only about trans folks?

        “Imagine, for instance, that you’re a father in a public restroom with your five-year-old son when a man who could be gay enters the bathroom, stands behind you, and waits for you to finish up. This is bound to make many fathers extremely uncomfortable.”

        If I accept the premise that this would make “many” fathers uncomfortable (which I don’t, by the way, any more than I accept the premise about mothers in Kevin’s original), this could be happening right now (and, again, empircally I think it doesn’t happen to any notable degree). So if you’re worried about the trans case you indicate above, why aren’t you worried about the gay case too? Or are you? Seems to me in the gay case, we’ve managed to just deal with that for a long time, so I would expect the same with the trans case as well.

        I just find it interesting that we’re either a) inventing worries that aren’t unique to trans folks or b) worrying about a problem that has been solved in a highly analogous historical case

        • Kevin Vallier

          Just to be clear, the scenario I imagine doesn’t bother *me*.

          • Steven Horwitz

            Yup. And I think your take on this is broadly a good one.

        • Lacunaria

          The present concerns of voyeurism (or other intimidation or crime) don’t actually target trans folk per se, rather they target the difficulty of distinguishing them from voyeuristic men dressed up as women.

          I am curious if gay men’s voyeurism (etc.) truly is statistically analogous, but as Kevin implies, this issue is actually sexist and people are not really concerned with the men’s bathrooms.

    • Lacunaria

      The anecdotes that I’ve read include men filming above or under the stalls and general intimidation. The larger concern regards increased opportunity for such abuse since it’ll become less likely to raise any red flags to see a man go into a woman’s bathroom and no recourse if they do.

  • Irfan Khawaja

    How (or where) does Locke look “for political solutions to all or nearly all social coordination problems”? You ascribe the relevant view to “the social contract tradition, going back to Hobbes and Locke,” so I’m assuming that you’re including Locke in the assessment. I don’t get why.

    • Kevin Vallier

      Sec. 87: “And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together.”

      Maybe I’m reading “all” too broadly, but it seems to include all disputes about natural law, which includes a huge number of issues we think of as largely moral.

      • Irfan Khawaja

        ST 87 lines 1-17 make clear that private judgment is excluded only with respect to that species of violations of the natural law having to do with violations of the right to property (in the broad Lockean sense of “property” that refers to life, liberty, and estate). Put equivalently, private judgment is excluded only in those cases bearing on “political society,” where the scope of “political society” is highly circumscribed. The “all” that you’ve quoted quantifies over violations of rights to life, liberty and estate, not the whole of the natural law (not even close to the whole of it).

        The huge number of issues covered by the natural law are not under discussion in either of the two Treatises, not even implicitly. The announced topic of the ST is political power, not natural law (ST 2). Locke invokes natural law in the ST in order to discuss political power; he doesn’t discuss the content or status of natural law as such.

        In any case, the view you’re ascribing to Locke is definitely not supported by ST 87.

  • LLC

    This ‘problem’, like so many others in modern society, is exacerbated substantially by what I call “Professional Offendees”. These folks see their hyper-refined sensibilities as their great contribution to the world. They seem capable to taking offence at pretty much anything one might care to name. And their loud and vociferous complaints are magnified by the immediacy and pervasiveness of our modern media.

    • Sean II

      Professional offendees aren’t the problem. Such people are always with us. 35 years ago they were church ladies shrieking in fear of gay people. Now they’re more often gay people or allies shrieking in fear of church ladies. Same mentality though.

      The problem is not that. The problem is that a singalling race has broken out to see who can eschew the right-but-obvious-and-boring thing (telling the shriekers to chill the fuck out), in favor of doing the wrong-but-morally-and-socially-preening thing (telling the shriekers to shriek on for justice’s sake).

      Big thread on that here a few days back, with plenty willing to support the Halloween Offendees of 2015.

  • Christopher Ritchie

    To my knowledge, the arguments against permitting Transgender people to use the bathroom of their choice are mostly chimera pulled out of thin air. That is, there is no evidence any of the ‘negative’ consequences have ever happened as described by those who wish to formalize laws against such things. On the other side however, there are plenty of examples of violence directed against Transgender individuals specifically for this reason. That is, in many instances those trying to legislate in favour of transgender people here are doing so in response to violence and harassment those people experience when forced to use washrooms that don’t match up with their gender identity.

    The reason this is an issue is because for some people, Transgender peoples existence is a problem. Some are married to a naturalistic determination of certain gender roles, others have religious or political beliefs that exclude Transgender peoples existence(or participation in the public sphere to be a bit more generous). I suspect partially that Feminisms upending of certain gender norms has contributed in various quarters to a fierce attempt to reaffirm other gender norms which Transgender is seen as further disrupting.

    • Sean II

      You’re very right about one thing: the whole controversy is manufactured. There is no such problem as this alleged epidemic of creeps playing at trans to slip into women’s restrooms and engage in creepery. That’s total bullshit, and it certainly is meant to conceal a different motive.

      But I think you’re not looking hard enough at the motives it conceals. It’s not an outpouring of trans hate on one side, checked by a counterdemonstration of tolerance on the other. There are some haters, and some genuinely tolerant people, but most involved are in it for different reasons – i.e fighting a wider culture war, in which trans people are being used as paws, like some 3rd world proxy battleground in the Cold War.

      Both Left and Right wish to impose their values on each other. Actually they just want the power to do so, apart from any particular values. For obvious reasons they don’t just come out and say this. What they do instead is adopt causes which allow them to look like moral crusaders in the bargain. The result is a nasty game of “I’ll make it hard for you to get an abortion, you make it hard for me to refuse baking a cake”.

      Or in this case: “I’ll force you to acknowledge trans people, you try and make it hard for trans people to take a piss…the one thing we know for sure: both of our fanbases will be psyched!”

  • eccdogg

    NC Resident here. I think many outsiders have misinterpreted what this law actually does with regard to bathrooms.

    The law does a few things. First it says that govt run bathrooms that are open to multiple people at once must be single gender and that that gender must corespond to the gender you were labled at birth. In practice the only way this will ever be inforced is if someone is making others uncomforterable and they complain. Otherwise pretty much business as usual.

    Second for private establishments it says that they get to set their own rules and that cities cannot make them allow transgender folks into bathrooms other than what they were labled at birth. Any private entity can still establish any rules it wants including unisex bathrooms or choose your own. So again business as usual.

    Third the law lays out a bunch of classes of folks that are protected from discrimination (this list mirrors federal law to my understanding). Aparently NC did not have any list of classes that could not be discriminated against at the state level. Homosexuals and Transgendered folks did not make the list. So business as usual for those groups, they were not protected before and they are not now.

    Finally the bill says that cities cannot set rules that are tougher than the state rules. Which essentially makes it so that cities can’t create rules to fight homosexual discrimination. This is where there is an actual change because several cities did have such rules on the books. I think this was an overreach.

    Oh and unrelated the bill also makes it so that cities can’t set higher minimum wages.

    The Charlotte ordinance would have essentially forced private entities to have all unisex bathrooms because there would be no grounds for stopping anyone from entering any facility. My concern as a father with two young girls is not so much transgender folks who you would never know the difference, but strait up men going into women’s bathrooms (and more importanly locker rooms). When my daughters go into the changing room at the YMCA I want to know that there is not a man in there and if there is someone can protest and have him removed. I don’t want all facilities to have to follow that rule, but I want there to be places that exist that do where I can choose to attend.

  • Lacunaria

    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.

    Social norms have solved these problems, but your appeal is naive in light of cases where people are suing to use a particular bathroom.

    The libertarian solution is to localize control over bathrooms (as the NC bill does), with the (albeit sexist) default compromise perhaps being that, if there is no single occupancy bathroom, then any ambiguous person may use the men’s bathroom and only women may use the women’s bathroom.