Jamie Lindemann Nelson, PhD. Professor of Philosophy at Michigan State University.

With a blogpost over at Michigan State’s Center for Ethics and Humanities in the Life Sciences, feminist bioethicist Jamie Lindemann Nelson has dipped her toes into the acid bath that is the American debate over gender and bathroom access.  Nelson has long drawn attention to bioethics’ shameful silence on trans* issues. In “Bathrooms, Binaries, and Bioethics,” she takes on the medical and moral confusions implicated in, and at the root of, the USA’s current debate over bathroom usage.

This is really a battle between convictions about sex and gender. I strongly recommend that you read all of Nelson’s post, but there are some key excerpts worth highlighting which bear on the putative justifications for such laws and the ways that bioethicists can make some noise in support of transgender folks:

The typical rationale for barring trans people from their lavatories is to protect privacy and safety. To speak gently, this is ill-considered: there is no reason to regard a transwoman as a particular threat to any other woman occupying the next stall. No cisgender man standing at a urinal has any special cause to fear the transman washing his hands at the sink. Any heightened danger of being menaced would run in the other direction: a transwoman forced to use accommodations designated for men might well have good reason to be concerned about her safety. Privacy is a more amorphous notion, but however it is meant, it seems unlikely to be furthered by forcing transmen to enter women’s lavatories, or forcing transwomen to use the gent’s.

Bioethicists, who generally favor clarity about risks and benefits as they concern bodies, should be among those pointing this out. They might also help spread the word that enforcing such measures heightens risks of pain, distress, and ill health to those who, during the course of a long work shift or school day, can’t bring themselves to use discordant facilities, or fear making themselves conspicuous by using whatever alternatives might be present. There is also disturbing evidence that barring trans people from facilities matching their gender identification contributes to their strikingly elevated suicide rates (Seelman).

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Not that these bills—which frequently stipulate that sex is determined by anatomy at birth, by chromosomes, or in accord with original birth certificates—need such dicta to reveal their intent; they do a pretty good job speaking for themselves. The language that blocks recognition of any kind of gender crossing makes it clear that the real target isn’t preserving anyone’s safety or privacy. The drive is to use the law, not only to limit trans presence in public spaces, but to fight the uptake and circulation of how transpeople understand themselves—in short, to delegitimize transgender people as such.

An icon of a toilet, white on black background, takes the place of the typical gendered figure of a standing human. The white words on black background read ALL-GENDER RESTROOM. There is Braille text, below.

I think we should take note that there have been many interesting, and some valuable, responses to these laws and to this delegitimization of trans folks. Trans and intersex activists have attempted to respond to these laws by noting variously that “Everybody Has to Pee” and that more members of the US Congress have been arrested for misconduct in bathrooms than have trans* persons. Some started the online resource Refuge Restrooms, which produces and maintains a list of safe bathrooms for trans, intersex, and nonbinary persons; users can search for safe restrooms within a radius of their location. Others have observed that parents often need to use bathrooms with differently sexed or gendered children in tow, or that caretakers of persons with disabilities may not share the same sex or gender with the individual who could use some assistance using the bathroom.  The conservative Breitbart News reports–with somewhat less enthusiasm than I have for the prospect–that some businesses in North Carolina are responding to the anti-trans bills recently passed there by requesting All-Gender bathroom signs.

But bioethicists also can have a role in this response, argues Nelson. As is only right and proper, she gets the final word:

A challenge now for bioethics is to nurture the affirmative side of this legacy, helping to clarify for medical personnel and the public how what has been fancied a natural binary in fact is maintained by intricate expressions of social power. If bathroom access is where those who still root for reaction draw today’s line, let’s be sure that it is drawn in beach sand, and welcome the incoming tide.