Article May 10, 2016

Are restroom laws that respect privacy the equivalent of Jim Crow laws?

In America, even the restroom has become a place for politics.

As strange as that may sound, the emerging front of America’s long-fought culture war centers on this question: Should men who identify as women, or women who identify as men, be permitted to use the restroom that aligns with their perceived gender identity?

Attorney General Loretta Lynch raised the stakes in this debate on Monday when she announced that the Justice Department would sue the state of North Carolina over HB 2. Claiming the law is in violation of Title VII and Title IX of the Civil Rights Act, the Attorney General made the reckless and philosophically problematic claim that laws which regulate restroom access on the basis of biological sex are somehow equivalent to Jim Crow laws—laws that systematically disenfranchised a whole class of persons based on skin color. To be clear: The United States Attorney General claims that asking a man with a penis to use the men’s restroom—or a man who had his penis surgically removed but retains the brain, physique and chromosomes of a man—be the equivalent of denying all African Americans access to ordinary public accommodations.

Is this comparison fair? Not at all. As I wrote at The Gospel Coalition, true discrimination (“invidious” is the legal term) is irrational, systematically disenfranchising, legally required and irresolvable apart from government intervention. None of that is happening here. As it relates to this issue, HB 2 simply requires that government-owned buildings make restroom policies based on biological sex. Despite hypocritical companies protesting otherwise, private businesses and corporations are free to set their own restroom policies. Furthermore, it isn’t unreasonable for the government of North Carolina to pass such laws because such laws adhere to common sense; they are based on the simple, observable and objective fact that men and women are biologically and anatomically distinct. And these distinctions merit a right to privacy. Eradicating these distinctions, in terms of legal protection, escalates vulnerability and invites abuse by those who would use such laws to their advantage. This is not to imply that transgender persons are to be viewed as predatory, but such unrestricted policies are liable to be exploited. Whatever power the Justice Department believes it is possessed with, no regulation can diminish the actual differences between the male and female sexes. Liberalism, however, has taken the dubious and unfounded position that denying these essential distinctions is in the best interest of everyone.

Jim Crow laws made arbitrary distinctions based on skin color. For example, the color of a person’s skin matters nothing to their hunger or ability to purchase food, but Jim Crow laws prohibited African Americans from entering certain restaurants. There’s no rational purpose to deny a person access to a particular restaurant because of an arbitrary factor like skin color. Those laws were senseless and irrational. HB 2, however, makes rational distinctions based on the very real differences between men and women. It isn’t wrong to pass laws that protected privacy based on these distinctions because the distinctions between men and women are meaningful and purposeful. Anatomical difference speaks to the very essence of men and women being different. Notwithstanding the fact that some people do suffer acute experiences of gender dysphoria, this should not outweigh the privacy concerns of the majority of people who feel uncomfortable sharing the same restroom as someone of the opposite biological sex. Attorney General Lynch can only make such a comparison by casting the wisdom of the ages into the dustbin of history while callously dismissing the legitimate concerns of millions of Americans about issues as fundamental as safety and privacy.

Attorney General Lynch’s incendiary comparison was used to merely inject further emotion and confusion into the culture war. By appealing to the bitter wounds of America’s past and present sins of racial prejudice, she has chosen to override wise custom and tradition about dress and privacy in exchange for progressive talking points.

Christians shouldn’t be put off by transgender individuals. Not in the least. Transgender persons are no different than anyone else. They bear the image of God. But like each of us, they are sinners. The brokenness that follows sin manifests itself at every level of creation and of our existence—from feelings of self-alienation, to unwanted or unnatural desires. Romans 8:20-23 speaks to the bondage of creation under sin. This bondage and corruption leaves us groaning for redemption. The good news is that Jesus’ life, death and resurrection is the promised plan of redemption that promises all of creation’s transformation.

Some Christians, tragically, have chosen to caricature transgender individuals as predators. This is wrong and demands repentance. At the same time, the concerns about access to restrooms being raised by transgender individuals shouldn’t just prevail over the concerns of others. That’s what led 50 families in Illinois to sue the federal government for its lawless re-interpretation of Title IX, including gender identity under the umbrella of sex discrimination. In this instance, teenage girls were uncomfortable with an intact biological male having unrestrained access to the same restroom where female students were undressing. When making sound public policy, it is wise to consider every person’s side of the debate and not simply kowtow to the frenzied demands of political correctness.

But really, this debate isn’t about transgender men or women using the restroom of their choice. Instead, the restroom wars are merely a proxy debate for a larger conflict about what it means to be male and female. As Christians, we’re told God created us in his image. God made men and women as equal, but distinct. These distinctions are beautiful, good and a testament to God’s wisdom in creation. These distinctions are objective and permeate the very essence of our physiology and psychology. Rewriting laws to conform to the spirit of the age cannot rewrite the laws of nature and nature’s God (Ps. 24:1).

There are people who feel deeply alienated and conflicted about how they understand and perceive their gender. But going down the path of affirming every desire and every perception is a slippery slope that needlessly mires people and societies in confusion. What’s necessary now, and what Attorney General Lynch failed to do, is to consider each side of this debate.