Law, Ethics and Gender: California’s “Bathroom Bill”

Barry Bonds identifying as female...kind of like he identified as "not being on steroids"

Barry Bonds identifying as female…kind of like he identified as “not being on steroids”

The fur is flying in California and also in the internet culture wars over California’s latest foray into social engineering, officially known as Assembly Bill 1266, and popularly known as “the bathroom bill.” In its current form, the proposed legislation states…

“A pupil shall be permitted to participate in sex-segregated school programs, and activities, and facilities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Here is such a wonderful example of the inherent limitations of laws as opposed to ethics that I’m considering having it framed and mounted.

Advocates of the law, or perhaps it is fairer to say defenders, can easily point to the kind  of situation the measure could make fairer and better. For there is a real problem here, unless, as some still do, one does not regard gender identity disorders as a legitimate psychological/medical issue but rather a form of sinful perversion. As in the matter of mandated handicapped accommodations in the Seventies, American society is gradually moving from a pure majoritarian position of saying, “Yup…these people don’t fit in the societal templates, and you know what? That’s their problem. We’re not going to inconvenience ourselves to help them” to a communitarian, empathetic position of saying instead, “We’re willing to make some adjustments and sacrifices so you can be a happy, respected and productive member of society.”  The dilemma is that while ethics cannot be counted on to handle the issue (Marshall’s First Law: “When ethics fail, the law takes over….”) laws by their very nature don’t handle such problems very well. Laws have to be absolute, or they become too vague to be effective or fair. No law, however, can be written to handle all permutations of the gender identity problem, or to prevent abuse of the law itself. This was and is true of the various laws guaranteeing rights for the handicapped, as any honest employment lawyer who deals with the Americans With Disabilities Act will admit. And the gender issue is much, much harder.

Ethics Alarms’ own Edward Carney makes as good a case for 1266 as one can make in his opinion article in And Magazine. He writes,

“Picture this … your 7 year-old daughter comes home from school in tears. You ask her what’s wrong and she says she’s afraid to go to the bathroom at school because dozens of boys come in while she’s in there. Outraged, you call the school to demand an explanation. You’re told that your daughter is telling the truth, because the school has made it clear that your daughter is only allowed to use the boys’ room, no matter how uncomfortable she feels there. Oh yeah… your daughter is transgendered.”

There is no question that this is the kind of scenario the law is designed to fix. It would be fine for someone to argue that common sense and ethical values like fairness, respect, empathy and consideration rather than the law should rule here, with the school and community making the reasonable and sensitive decision that if the child looks like a girl, acts like a girl and feels like a girl, she should be allowed to use the girls’ bathroom, play on the girls’ soccer team and join the local Girl Scout troop. Fine, but naive. Some students would be freaked out; some parents would scream bloody murder, and some would write letters. The girl,whatever the final resolution, would end up feeling like a freak and an outcast. There would be lawsuits, with money and liability risks, rather than right and wrong, determining where the school and community stood. Moreover, the episode would raise the classic and unanswerable ethical conflict that has perplexed civilizations for centuries: how much should the majority be willing to sacrifice for a minority, particularly a tiny minority?

That conflict would remain contentious if the matter were settled by law, but the rest of the crisis would never arise….no letters or lawsuits— it’s settled: if the child identifies as female, she gets to do what females do. Good.

Now imagine that a smart, athletic, large high school boy comes from a family that can’t afford to send him to college. He’s not quite good enough to be a standout on the boy’s basketball team, but he’d easily be a stand-out, indeed a juggernaut, in girl’s basketball. So the family decides: OK, if you’re up for it, wear a dress (you can keep the beard), call yourself “Carol” (or maybe your name is already “Pat,’ so you can keep it) and demand to try out for girl’s basketball. Pat is 6’8” and 240  pounds—he can crush those girls. It’s unfair; it’s dangerous; it’s absurd. But as I read the proposed law, Pat can’t be stopped, because the law provides no verifiable standards for determining what Pat thinks his gender identity is.

That’s just one undesirable scenario the law allows. I wrote about another here, where at Olympia College in Washington, a transgendered, 45 year-old adult identifying as a woman “likes to display her alien genitalia with abandon in the ladies locker room, despite the fact that she often is surrounded by members of a high school swim club and a children’s swimming academy, many of whom are high school age or younger, and some of whom are as young as six.” 

Ed writes,

“The real problem is that gender and sexual identity are far more complex things than we realized even just a couple of decades ago. It seems nigh impossible to accommodate everyone with regard to both their sense of social comfort and the security of their personal identity. Yet the problem certainly will not be solved by normalizing discrimination against one class of people to preserve the most convenient notions of social decorum. Neither will it be solved through a lack of imagination – an entrenched inability to understand marginalized people on their own terms, as opposed to in whatever way matches the strict limits of your own experience. The world and its people are marvelously diverse. It gets so that the dizziness that comes of trying to take it all in can seem an awful lot like insanity. But that’s no reason to just shake your head from the swoon and abandon the challenge that diversity poses for social justice.”


I agree; we all should agree. Nonetheless, resorting to a badly drafted and over-broad law that has easily identifiable flaws and opportunities for abuse is irresponsible, a surrender to the popular but foolish “we have to do something!” impulse. Criticizing and rejecting a reckless law that is offered for the best of intentions should not be treated as a rejection of the admirable goals behind the law, but rather as adherence to rational and responsible standards in lawmaking. If a critic has no empathy for transgendered individuals but correctly points out that the law is too broad, the law is still a bad law. If an advocate for the transgendered supports the law despite understanding its obvious and serious flaws, he’s still an irresponsible lawmaker.

There is a real problem to be solved. This proposed law doesn’t do a good job solving it, however, and will create at least as many problems as it wants to address. Indeed, there are some problems that either ethics must solve, or there will be no solution. This might be one of them.

The only responsible and ethical verdict on Assembly Bill 1266 is “Don’t give up. But back to the drawing board.”


Pointer and Spark: Ed Carney

Sources: And Magazine 1, 2



31 thoughts on “Law, Ethics and Gender: California’s “Bathroom Bill”

  1. How about an ADA-like solution: A few private, single-user bathrooms with locks on the doors that anyone can use or not use. And why are there still gang showers and open locker rooms anyway? I thought they went out in the sixties? My kids, when in HS twenty years ago, weren’t comfortable in anything less than private showers and locker rooms. Why is taking showers together and dressing together still a rite of passage? Dumb.

    • And PLEASE don’t tell me this would be discriminatory, like having “Whites Only” and “Coloreds” restrooms. Anyone will be free to use these private bathrooms. As a matter of fact, why doesn’t the Califronia legislature just require (and pay for) private bathrooms, period. Expensive but it would save a lot of brain damage all around. And it would even benefit the taxpayer parents whose kids are not in a sexual orientation/gender identity minority as well. What a concept.

      • Seems reasonable to me. Ask any mother who has hauled her 9 year old son into the ladies room. He’s not a toddler but there’s no way she’s sending him into an airport or shopping mall men’s room by himself. Those “Family Restrooms” are a godsend.

      • I actually much prefer this solution. I implied as much in my piece, but didn’t emphasize it because I wrote the thing primarily as a response to bald assertions that the bill was pure lunacy. I do think that gender-neutral bathrooms can have the effect of reinforcing the alienation of some transgendered students, but I recognize that that’s going to happen no matter what, and I think the gender-neutral alternative has far fewer negative consequences than what California is proposing. In fact, it’s been done in high schools elsewhere. It’s actually not expensive at all. It barely costs anything, since re-purposing the bathrooms mostly involves changing the signs.

      • And why are there still gang showers and open locker rooms anyway?

        Because they are a lot cheaper. What with undressing, getting dry and dressing oneself you are only under the shower for less than one third of the time that you are in the changing room, so to provide everyone with private shower rooms you would need three times as many showers.

    • Your solution is already happening in a lot of commercial establishments. In the newer buildings I do single user bathrooms are no longer labeled male or female.

  2. I think I’m blushing. I didn’t expect to be twice-quoted or tagged.

    Though I agree that this law is far from ideal, I do believe it’s defensible. Your claim that the bill provides “no verifiable standards for determining what Pat thinks his gender identity is” mirrors some of the criticisms that I’ve read elsewhere, which regard the bill as inevitably leading to complete gender integration throughout California schools. The issue of verifiable standards is a matter of enforcement. The law only establishes a principle whereby it is illegal to discriminate against transgendered students by denying access to facilities that match their identity. I doubt that this will prompt any students to fake a gender identity in order to gain access to the other facilities, but even if it does that action isn’t defended by the proposed law.

    The hypothetical that you offer, in which a boy pretends to suffer from gender dysphoria in order to achieve some personal outcome, is not enabled by this principle. It’s a case of fraud. And I don’t see how any broadening of a protected class makes fraud less of a punishable offense. What if Pat is a relatively small boy, who can easily pass for a girl, but only wants to do so in order to sneak into the girl’s restroom? I’ll bet it’s already been done many times over. The deception involved doesn’t seem different to me if Pat only needs to pretend to be transgendered, as opposed to pretending to be physically female. He’d have to be a talented actor either way, or the school administration would have to be fantastically dumb in order to not notice that Pat only becomes Patricia when he has to go to the bathroom.

    I’m just not sure how reasonable it is to expect the law to be absolute when the function of that law is only to establish protection of civil liberties for a certain class of people. When the law discusses “discrimination based on race,” how absolute is that, really? What, exactly, constitutes discrimination? What determines race and whether that was the basis of the discrimination? Don’t these things on some level have to be sorted out by practice and litigation after the principle has been established?

    Along those lines, I would say that pointing to the likely responses of majority students and their parents doesn’t constitute an argument against such a law as this. No doubt some students are freaked out by the presence of gay students in their restrooms, and others are freaked out by the presence of blacks. Those may be “matters of settled law,” but didn’t they have to go through a period of legal contentiousness in order to get there?

    I do understand that this topic concerns the welfare of the majority versus that of the minority. But ultimately I don’t see this bill as really asking the majority to sacrifice for a minority. What are they sacrificing, other than their ability to remain blind to the presence of things they consider icky? If a student genuinely feels threatened or uncomfortable in a school facility, this law certainly doesn’t prevent them from redressing that grievance with the administration. It just establishes that their objection needs to be based on actual behavior or real questions about the identity of the student, and not on the simple fact that the complainant doesn’t like that identity.

    It seems appropriate to say “we have to do something” if we really have to do something in the short term to promote the development of a longer term solution. That might be the case here. I’m not sure; I’ve just gotten myself obsessed with defending this thing.

    • My problem is that the law creates opportunities for fraud that don’t exist now, indeed open up opportunities to disadvantage women and make a mockery out of scholastic sports. The obvious remedy, and a classic “unintended consequence,’ would be to have gender neutral sports teams across the board.It is ironic for this to be called “the bathroom law” when its most problematic effects would be outside the bathroom. The bathroom issue is an easy fix. Locker rooms are much tougher.

      The ADA is also the tool of frauds, but the number of handicapped and the extent of the problem of discrimination against them makes the balancing equation justifiable. I’m not sure the same is true in this case.

      • My problem is that the law creates opportunities for fraud that don’t exist now

        We can quantify the risk though.

        60% of the US population lives in states, cities or counties where similar legislation is already in effect. Average time such laws have been in place is about 10 years, several decades in some places.
        So for every 200 million x 10 years or 2 billion person-years, we have an estimate of how often such frauds occur, by looking at all recorded cases.

        The number is zero. One such fraud was attempted in Washington state, but the perp was found guilty, as the laws against voyeurism etc are still operative.

        We can therefore reasonably expect less than 1 attempt in the whole of the USA every 6 years.

        Are there any other laws that actually disadvantage members of minorities many times per day in order to avoid a potential risk so low?

        That is not to say that such a thing may not happen one day. It might tomorrow, or in a thousand years, or never. The probability is so low we can’t do more than estimate an upper bound. No more than one attempt per 6 years.

    • I see what you’re saying and you’re not wrong- fraud is fraud, regardless. I think the confounding factor here is the reluctance to question feelings (as opposed to physical attributes). Your example of a boy pretending to be a girl can be questioned, and caught. Someone faking a disability for some desired goal (better parking, say, or a roomier hotel room) can be caught on the basis that he was seen walking without his wheelchair.

      How do you establish someone’s gender identity? If I (6’2” former football player and powerlifter) SAY that I identify as female, how do you prove otherwise? Because I hang out with mostly guys, because I swear and drink whiskey and lift weights and like football? Women can do those things, maybe I just like doing them while identifying as female. The moment you question what I have said my gender identity is, you are now being horribly offensive and stereotyping me.

  3. Maybe we should have gender neutral sports leagues, Jack. No opportunity fraud there. Anybody can play on the PGA tour. Why not anybody on the LPGA tour? Lots of lower tier men pros would love to be able to pick up a check on the LPGA Tour. Think of all the guys playing basketball in Europe that would be delighted to play in the WNBA. I bet at least some college guys would love to have a scholarship to play women’s basketball or softball. Is it fair for better built, more “masculine” women to compete against more fragile women? Maybe we need more MORE leagues: Mens’, guys who aren’t so tough, females who like guys, females who like women, females who like women but aren’t so tough or big, women who used to be men, etc. I guess one of my points is athletic competitions are won primarily in the gene pool and not on the playing fields. As a kid, I wanted to play in the NBA. Guess what, I am too short and too slow and can’t even think about dunking. I think the government should have required all colleges that get federal funds to provide me a scholarship and let me get the benefits of college competition on my resume. Sorry, not sure where I’m going here, but isn’t this kind of concern for special groups getting a little, I don’t know, arcane? But if all sexual identities are the same and we need to be gender neutral, why segregate or discriminate against guys who identify as guys and sexually desire women? They tend to be bigger and stronger? So what. Isn’t athletics intended to identify and reward the strongest member of the tribe, er, community?

    • Ooops. Sorry Jack, you did mention this in your comment. Guess I kind of went off the rails there, but this sort of stuff can be absolutely maddening. Reductio ad absurdem comes to mind. I’m also thinking of changing my Ethics Blog handle to “Bathroom Bill.”

    • The biggest problem is that in many sports, a gender-neutral league would end up being largely comprised of one gender. Yes, there are women that make fantastic linebackers. But there will always be far more men. Then come the complaints of discrimination, and quotas, and affirmative action… There be dragons, there, too.

      • But maybe the answer is “so what?” Are sports for having “fair competitions” or simply to identify the guys in the gene pool who get to marry cheerleaders and sell insurance or become sports broadcasters? Did the ancient Greeks have various divisions in the ancient Olympics? They were looking to identify the fastest runners and strongest spear chuckers for military purposes. At least I bet that’s how their defense department looked at it. Sports aren’t for everybody, they’re for jocks. And we’re not all jocks. Big deal. Maybe kids would waste less time pursuing athletics and develop really valuable life skills earlier on if every kid didn’t get a trophy and five slices of pizza for just showing up in a uniform on Saturday morning.

        • Sports aren’t for everybody, they’re for jocks. And we’re not all jocks.
          An interesting, and concisely-worded thought that I must say I agree with.

          Unfortunately, it has little to do with the discussion at hand.

          Because peeing IS for everybody, not just jocks.


  4. Gender identity is just a subversive phrase made up by people who want to destroy American society. It defies common sense.

    This is not to minimize the plight of those suffering from transgenderism. It is a mental disorder, and our society has a poor track record of respecting the dignity of the mentally ill.

    I do like Other Bill’s proposed solution above. It is a reasonable accommodation.

    Gender identity advocates seek the destruction of American civilization, and people suffering from transgenderism are simply a means to their end.

      • Not civilization – American civilization. And American Society. Please, he made a far less general claim than “civilization” as a whole.. I’m not sure if he includes Canada, Mexico etc or just the US. Hopefully he’ll explain.

        He’s intelligent, he writes grammatically correct sentences, so we should be able to have some sort of dialogue (or dialog if you prefer) about this.

        We don’t learn anything by residing in a sterile echo-chamber where everyone agrees, and Mr Ejercito’s um outspoken? ideas are certainly not in accordance with my own. This could be interesting.

    • Gender identity advocates seek the destruction of American civilization

      And you know this how? (I nearly wrote “The voices in your head, or some other reason?” – but that would be insulting, counter-productive, and would reflect badly on me, not you)

      I’m a Gender Identity advocate by the way, so I’m absolutely fascinated in how you know this. I’d really appreciate you explaining it not just to me but to everyone else.

      It defies common sense.
      A fair criticism. It’s outside of ordinary experience.

      Some other things that “defy common sense”

      The idea that the Earth isn’t flat.
      The idea that it’s round, and spinning.
      The idea that stars are actually huge balls of hot gas rather than little points of light.
      The idea that as things move faster, their length shortens and they get heavier.

      While most ideas that “defy common sense” are indeed nonsense, some significant ones – like those above – are not. The test of common sense is a good approximation, we ignore it at our peril, but it’s not definitive, not proof. Sometimes it’s just plain wrong.

      If I may, I’d like to make a series of long comments showing evidence for the correctness of this idea – “Gender Identity”. But you first – please tell me what it is you think I’m trying to accomplish – the destruction of American civilisation presumably – and why I’m doing this. Since you claim to know.

      Meanwhile, our solution for the issue of people getting upset by Intersex and Trans people being allowed to use restrooms is to provide single-stall unisex facilities. That way, anyone who’s upset at the idea of having Jews, Blacks, Catholics, Redheads, Intersex people etc using the same restroom as them have a place to go to where they won’t get upset. Bigots have rights too, and we should provide some accommodations for their condition.

      • Not to get involved in the larger argument here, but the things that you describe as “defying common sense” really don’t defy common sense, unless you are using “common sense” wrong. I think you mean something like “gut feeling” or “uninformed opinion.”

        I have no idea what Michael objects to about the general concept of “gender identity” but I suspect it would have something to do with the completely arbitrary and amorphous nature of said concept. A dialogue would be nice.

        • Incidentally, a perfectly sound example of something that accurately defies “common sense”: comparing the difficulties of sorting out gender identity bathroom-issues to racism against Blacks, Catholics, and Redheads. Bravo?

          • Let’s look at race… the tests used by the Zuid Afrika Racial Classification board.

            “These tests included measurements of the nose, nostrils, and cheekbones, and an expert analysis of hair texture. The latter often included the ‘pencil test.’ It was thought that a white person’s hair is not so curly to hold a pencil, whereas a coloured person’s hair could. There were gradations of skin color to be measured in various places of the body including the fingernails and the eyelids; earlobes were squeezed to determine their degree of softness. (It was thought that Black person’s earlobes were softer than others.) Individuals challenging their racial classification before the board would also be asked what they had for breakfast (it was thought only blacks would eat mealie or cornmeal porridge), how they slept on a bed, and what sport they enjoyed (blacks were thought to favor soccer while coloured favored rugby).”

            The Story of Sandra Laing

            * Born in Apartheid South Africa of White Parents.
            * Was designated white at birth, but was reclassified as “coloured” just after being expelled from her all white elementary school

            Which led to some interesting legal problems…

            * “…If Sandra remains ‘Coloured’ does it mean she will have to be registered as a servant in order to live with us?” [Mr. Laing] added. “Or must she move away into a location? Will we be breaking the law if we take Sandra into a tearoom or a cinema, or take her on a train journey with us? And who would Sandra be allowed to marry?”


            She could just as well have asked “which restroom should she use”?

          • Perhaps this hypothetical might be a better illustration.

            1 in 500 women are born with CAH – congenital adrenal hyperplasia – a condition which masculinises their genitalia Sometimes severely, sometimes negligibly.

            Consider twin girls, born in a car accident on the Tennessee border. Both with CAH. They’re taken to two different hospitals, one in TN, one outside.

            The one in TN, after some umming and ahing, is assigned male on her birth certificate. The other, female.

            TN has a law saying birth certificates cannot be changed.

            The twins grow up, both being brought up as girls. They go to school. They are genetically and genitally identical.

            Which restroom do they use?

            Another girl goes to the same school. She’s been “outed” as Transgender. Which restroom does she use? What happens if the “outing” is just malicious gossip, she’s not transgender at all? You see, in all three cases, the twins and this other girl, no-one in the school has actually seen the genitalia in question – both male and female restrooms have doors on the stalls.

            At what point do we cause actual harm and persecution to a child in order to prevent “discomfort” for others?

            I haven’t even begin to get into the really difficult cases of “natural sex change” where shape of genitalia changes.

            See for an example of that,, though there;d be less than 10,000 such cases in the whole of the US, probably only a couple of thousand of school age.

            • Another girl goes to the same school. She’s been “outed” as Transgender. Which restroom does she use? What happens if the “outing” is just malicious gossip, she’s not transgender at all? You see, in all three cases, the twins and this other girl, no-one in the school has actually seen the genitalia in question – both male and female restrooms have doors on the stalls.

              There are reasonable accommodations, such as sex-integrated facilities.

              • Fine.

                My birth certificate says “boy”.
                My passport says “F”.
                Really, not a hypothetical, this really is true, and pending a change to UK law, will remain true. I’m not Transsexual, technically, but Intersex, and the recent (2004) laws allowing changes to birth certificates only apply to Trans people. They did, however, over-rule all previous caselaw on the subject, leaving us high and dry.

                Which of these sex-segregated facilities am I forced to use so as not to cause “discomfort” to others?

                Bearing in mind I’m not in the habit of exposing my genitalia to others, or even describing exact configuration(s), past and present except for educational purposes. To state the obvious, this is a very personal and private thing, and to require me to do so just so I can use a restroom without others getting their panties in a knot would be close to the ultimate in invasion of privacy.

  5. Just wow. Let’s trample the rights of all people so a few don’t feel bad. How about just like ramps for the handicapped, you have a one room stall bathroom where anyone who is uncomfortable peeing ‘in public’ can go?

  6. Girls will get rapped with this law. have fun people that support it. there is no way to stop straight boys from saying im transgender so they can…..rape…molest…or sneek peeks of naked girls girls will be very uncomfortable using these restrooms. your taking 3% of the population and making now 90% of it uncomfortable.. the 3% is the tran gender folks.

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