Bathroom Bills and the Policing of Trans Life

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A few weeks ago, I received a security alert from the University of Michigan Police Department that contained the following account of an assault: “A student reported that while she was in a women’s restroom, a male subject entered the restroom and forcibly hugged her before she could flee. An unauthorized, handmade ‘out of order’ sign was found posted to the restroom door.”

Reading the email threw me. I couldn’t stop thinking about how terrifying the assault must have been for the person who faced that man with his outstretched arms. I was running loops in my head, imagining how I might have responded, wondering whether I would have been able to flee when faced with the shock of the event. And having to pee every hour or so didn’t help. My repeated trips to the women’s room that afternoon provoked feelings of nausea and more intense nervousness than usual. In addition to fearing a repetition of the earlier assault, I was concerned that there might be police keeping an eye on the bathroom, and that an officer might decide to follow me through the door. What if a cop clocked me, read me as a trans woman, that is, as “really” a man, which is to say, as a potential perpetrator of the assault I feared?

Many trans people of my generation will remember a zine, or pamphlet, entitled “Piss and Vinegar,” which came out in 2002. Written by Dean Spade and Craig Willse, the zine recounts Spade’s experience of being confronted by a cop in a men’s bathroom at New York City’s Grand Central Terminal, threatened, asked to show ID, pushed against a wall and arrested along with Willse and Ananda LaVita (who had entered the men’s room to try and support their friend). The police removed all three from the bathroom and took them to jail cells.

The assault on Spade, Willse and LaVita happened following a day of protest against the World Economic Forum, and occurred at a time of heightened policing against queer and trans youth of color — policing often justified with reference to public indecency and anti-prostitution statutes. Queer and trans youth were (and continue to be) the targets of curfews and more frequent police patrols in parks and on piers, as well as in and around New York City public restrooms.

These bills aim to remake the birth certificate into a kind of bathroom pass.

Most trans people carry with them stories of negative bathroom experiences, some less bad than the story recounted in “Piss and Vinegar,” and some worse. Mine are on the lighter side of the spectrum, mostly involving hostile or creepy stares, people correcting me as I open the door and simple declaratives: You shouldn’t be here. These stories make clear that we have never been safe in gendered bathrooms, and some of us less so than others. Anti-trans bathroom bills and initiatives such as the bill passed last week in North Carolina seek to deepen this unsafety by giving the police, company managers and school administrators more legal power to harass trans and queer people in and around gendered bathrooms.

Of course, those promoting such bills are also speaking the language of unsafety. Invariably, they invoke the specter of men in women’s rooms. KeepNCSafe, an anti-trans advocacy organization, uses the slogan: “Protect women’s bathrooms, showers, & locker rooms.” And in justifying North Carolina’s Public Facilities Privacy and Security Act, Gov. Pat McCrory echoed this slogan, saying, “[The Charlotte anti-discrimination bill] defies common sense and basic community norms by allowing, for example, a man to use a woman’s bathroom, shower or locker room.” Much of this anti-trans advocacy has an unmistakably paternalistic quality, calling on powerful men and male-dominated institutions to protect women’s spaces in the name of family, decency, common sense and security.

Some who have spoken out against North Carolina’s House Bill 2 have pointed out that, far from keeping men out of women’s restrooms, the law would mandate that most trans men use women’s facilities. Selfies of bearded, muscular white trans men have circulated across social media, paired with captions such as: “@PatMcCroryNC It’s now the law for me to share a restroom with your wife.” Or: “Hey conservative fearmongers – pls explain to me again why you want me in the women’s restrooms…”

Such posts call upon the same anxieties as those mobilized by KeepNCSafe, attempting to undo the justification of the bathroom bills by revealing an internal contradiction in the paternalistic project of trans exclusion. As much as these posts effectively challenge the invisibilization of trans men in debates over bathroom bills, do they not also enter into a patriarchal discourse among men, about the management of women? The posts address governors and conservative activists, rhetorically asking them what would best shield women from danger (or perhaps from illicit desire).

Others critical of the bathroom bills have taken the tack of comparing the fictional quality of trans predators with the reality of indiscreet Republican men. As a popular tweet has it: “Time to remind folks that there have been more US Senators arrested for sexual misconduct in bathrooms than trans people.” While I can appreciate the importance of stressing the unreality of the “trans sexual predator” figure, its function as transphobic myth, the literal claim of this post is almost surely untrue, as Black and Latinx queer and trans people have for some time faced particularly intensive police harassment in and around public bathrooms, and are not infrequently detained under public indecency or anti-prostitution statutes, for acts ranging from having sex, to carrying multiple condoms, to merely being present in heavily policed spaces. And do we really want to imply the legitimacy of former US Sen. Larry Craig’s arrest for tapping his foot in the hopes of finding a willing partner for a quick hookup? Common to all of these widely circulated social media posts on the bathroom bills is a glaring inattention to the violence of policing, particularly the policing of queer and trans bodies. The police are the patriarchal, white supremacist presence that these bills promise to further force on those using gendered bathrooms, locker rooms and other public facilities.

In states with anti-trans bathroom bills, the police are empowered to ask those using restrooms to show their birth certificates. These bills aim to remake the birth certificate — often the most difficult state ID for trans people to alter — into a kind of bathroom pass. It seems that the birth certificate has become something of a talisman for the far right. In addition to the bathroom bills, we’ve witnessed an obsessive attention directed toward President Obama’s purportedly forged birth certificate, and recent efforts in Texas to deny birth certificates to children of undocumented parents.

There’s a grim aptness to the far right’s politics of the birth certificate — a document that promises to record the original, true state of being of an individual, before the messiness and movement of actual life intervenes. It is the most conservative document of the self that could be imagined. And there should be no doubt about it: trans, queer, feminist and antiracist politics challenge such conservatism. Our politics rest on the affirmation that transformation is possible; that our fates are not sealed at birth; that borders, binaries and prison walls can be undone; and that biology is not destiny. And insofar as left coalitional politics speaks of unsafety, it is out of the conviction that an injury to one is an injury to all.

In this vein, and against those who would cynically invoke the real violence and unsafety that women face on a daily basis, we can work to put into practice a transfeminist politics of mutual support, self-defense and movement building. Dean Spade’s friends came to his aid when he was being harassed in the bathroom. What might a politics modeled on such an act entail in this moment? In addition to mobilizing against the bathroom bills and supporting those facing increased police harassment, we can continue pushing for the establishment of more all gender bathrooms, and can work together to challenge the cultural and institutional norms that tell men it is OK to harass or assault women, that make so many of us live in fear of rape and sexual harassment, and that treat as unreal trans people’s gender identities.