“It’s not discrimination that’s the problem: it’s unjust discrimination that’s the problem.”


Much has been written of late on North Carolina’s “bathroom bill” and too much of it I deem to be complete bilge.  Seriously. But this comprehensive piece from Trent Horn is well worth your time and counters the bilge quite nicely:

Some people shut down discussion of HB2 by saying it is “discriminatory.” They hope the dreaded “d-word” will strong-arm levelheaded people to move against the bill.

But what’s wrong with being discriminatory? Discrimination simply means you notice a difference between two things and treat one differently than the other because of that difference.

For example, laws that prohibit men from using women’s locker rooms (and vice versa) discriminate. They notice that men are different than women and use that difference as the basis to treat men differently or, in this case, deny them access to certain facilities. If all discrimination were wrong, then you couldn’t have any segregated bathrooms or locker rooms.

It’s not discrimination that’s the problem: it’s unjust discrimination that’s the problem.

Jim Crow laws that prohibited minorities in this country from using white locker rooms and forced them to use their own facilities didn’t just discriminate, they unjustly discriminated. They used a morally irrelevant trait like race to justify unequal treatment and segregation. The same would be true for restaurants that deny women service so that male customers could have “man-time.” In this case, the difference between men and women is not morally relevant to the restaurant’s unequal treatment of women or the potential harm of such discrimination.

However, as with segregated locker rooms, discrimination can be morally justified if it has a rational basis. What about the North Carolina bathroom bill? Common sense should (but, unfortunately, often does not) tell people that men and women have morally relevant differences that races or nationalities do not. They are often sexually attracted to one another or, at least, experience feelings of deep discomfort when they are forced to disrobe or engage in excretory functions near one another. Therefore, the common good is best served by segregating men and women in places where intimate bodily functions or disrobing occurs.

Indecent exposure

Now, someone might argue that he has a good reason to use the changing facility of another sex and so such discrimination is unjustified. Consider a meek, 13-year-old boy who is routinely bullied in the male locker room. He may wish to use the girl’s locker room because he does not want to be physically intimated. Let’s say further that he has deep-seated same-sex attraction. He could argue that the girls should not feel uncomfortable around him, since he isn’t sexually attracted to them.

But it should be clear that girls are justified in being uncomfortable in the presence of a nude or seminude post-pubescent boy, and their right to privacy outweighs the boy’s desire to be comfortable. In fact, all states have laws that ban this kind of “indecent exposure” between men and women. This fact also highlights a glaring problem with solutions from critics of HB2 that allow people to use facilities that match their “gender identity” and not their biological anatomy.

Let’s suppose the law is amended so critics get their wish: a person is allowed to use any public facility, including restrooms and locker rooms, on the basis of gender identity and not biological sex. Now, what do we do about section 14-190.9 of the North Carolina penal code? It says, “Any person who shall willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, except for those places designated for a public purpose where the same sex exposure is incidental to a permitted activity . . . shall be guilty of a Class 2 misdemeanor.”

If a man exposes himself to two boys walking home from school, he would be guilty of indecent exposure (and possibly other crimes, since his victims were minors). If he exposes himself in the process of changing in a male locker room, he would not be guilty, since that occurred in a “place designated for a public purpose where the same sex exposure is incidental.” But if he waltzed into a female locker room and changed in front of a group of girls or women, he would be guilty of indecent exposure. How does his guilt change if the man says he identifies as a woman?

Keep in mind that this is not a mere hypothetical example. A few years ago a group of teenage girls came across 45-year-old Colleen Francis exposing “her” male genitals in the sauna  of a public locker room. Whether the possessor of male genitals identifies as a man or as a woman, the women in the locker room are still exposed to the sight of male genitals, and that is what justifies indecent exposure laws. How does the fact that the possessor of male genitals may think he’s a woman, or the king of France, or any other distortion of reality, change that reality?

There’s more. Read the whole thing.

{Image lifted from The Libertarian Catholic}

Originally published at Brutally Honest.

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