Sometimes I’m so brilliant, I terrify myself.
Gimme a few seconds to remove my tongue from my cheek and I will elaborate … ah! … there! … much better! … OK … Onward …
I have been following, off and on, the ongoing story about the young transgender Virginia man, Gavin Grimm, whose suit the Supreme Court recently refused to hear, remanding the case back to the lower court and essentially allowing to stand a decision prohibiting Mr. Grimm from using the men’s restroom in his high school. It is important to understand that Mr. Grimm is, both anatomically and in terms of his manner of dress, male, in fact, indistinguishable outwardly from a young cisgender – I hope I use that term appropriately -- male. Anyone encountering Mr. Grimm in a men’s restroom, who did not know the story of his hormone therapy, would not know or be able to discern that he is a transgender person … any more than anyone unaware of Bruce Jenner’s backstory would be aware that Caitlin was other than a young cisgender woman. This thundercloud is what spawned my lightning-bolt idea.
In support of transgender rights, I propose a Nation-wide campaign of civil disobedience on the part, not only of actual transgender people, but on the part of cisgender supporters of transgender rights. The people facilitating the campaign – which could well be the product of local real-time sourcing of flash-crowds convened by social media, tweets, SMSs, e-mails, Facebook texts … whatever – decide on a set of restrooms, much preferably restrooms for both sexes simultaneously. The restroom locations are also broadcast by social media to all participants, who then converge on those locations, after notice has likewise duly been broadcast to local media outlets that a group of transgender individuals are staging a demonstration by using both the men’s and women’s restrooms at – this is only a hypothetical example – a Wal-Mart somewhere in Chapel Hill, NC, at 11:00 a.m. on Thursday, 23 March. (For obvious reasons, this would only have an impact in States whose laws regulate which birth-certificate gender can use which restrooms: you cannot commit civil disobedience by doing something legal.) Such adversarial gatherings could be called “pee-ins” or “crap-ins”. (I use the words “pee” and “crap” in preference to their more descriptive and colorful Anglo-Saxon synonyms because this is a “family column,” and also to demonstrate that, appearances notwithstanding, I do possess some rudimentary sense of “couth”.) Once participants are merrily watering and / or fertilizing the local landscape or decorative plants, mall security and / or local law enforcement could be called in, perhaps by the management of the affected businesses, to enforce the law. My question: how the hay-yull would they (law enforcement) go about doing that?
The pee- / crap-in in question, like all forms of civil disobedience and protest, should be accomplished peacefully and with meticulous compliance with the “rules of the road”. No littering with paper towels. No monopolization of bathroom fixtures: you do your business, wash your hands, discard the paper towels in the trash bin – then leave. No shouting matches – remember, this is all happening in a deeply red State – with hecklers. This is always a good idea as a general principle. So taught Jesus, Gandhi, and Dr. King. But aside from that, any verbal disrespect, and certainly any physical altercation, might well give law enforcement at least “reasonable suspicion,” perhaps even “probable cause,” to take actions to determine one’s gender status as to transgendered or not. And, most likely, being incarcerated in a red-State holding cell and branded by news report, rumor, and innuendo as either transgender or a friend of someone who is, might not be conspicuously conducive to one’s health. Any altercation, physical or verbal, would inadvertently solve the how-to-enforce problem for the local transphobic powers themselves: you would just give them an excuse to do what they might want to do, but lacked constitutional warrant for doing, anyway.
(These days -- though this hardly needs to be said -- it would also be a good idea to designate several people not taking direct part in the protest as videographers who would record the entire proceeding on their cell phone cameras, much preferably from several different vantage points, then upload the images to the Cloud for safekeeping. Police lapel cams have an odd habit of ceasing to be reliable in such contentious circumstances, especially in red States.)
I say that because the point of all this would not be to get arrested, though that could be inconvenient. (I speak as someone who was once arrested for throwing a rotten egg at Vice-President Spiro Agnew in 1973 – I hit the sumbitch, too! -- which resulted in my background check for a Defense Department security clearance taking 3 months longer than it would have otherwise.) Rather, the whole point is to dramatize the radical un-enforceability of restroom-use laws based on someone’s sexual status. (I say “status” instead of “orientation” because there is no relationship between someone being trans and being LGB.) At least, such laws are unenforceable as long as the Constitution, especially the 4th Amendment, is still on the books. (Important qualification: remember, this is now Trump’s America!) No cop can walk up to you and say something like the old World-War-2 Nazi order “Show me your papers”. Even stationing officers as "junk" checkers outside every public restroom in a given State would not suffice, because the question itself is unconstitutional in the absence of at least “reasonable suspicion” (as in Terry v. Ohio). The point of recommending docility, apart from the general principle of non-violence, would be to not provide law enforcement with a pretext for what would essentially be a “Terry search” of one’s sexuality.
Absent such a pretext, the law would be powerless -- and even the most sieg-heil-philic enforcers thereof would be powerless -- to enforce a law that is, for constitutional reasons, un-enforceable in the first place. The existence of bathroom-use laws tells us nothing about the incidence of sexual assault perpetrated by trans people -- basically, because the incidence of such is identically zero. (You would have an immensely greater reason to fear going into a restroom alone at night with a conservative evangelical-Christian Republican Senator -- say, Larry Craig -- than with a trans person about whom you know even less.) But, like the conservative Republican obsession with shoving probes up women's private parts, the preoccupation of red-State politicians with one's sexual orientation and history tells us much more about the conservative fetish over sex than it tells us about the sexual practices of those whose supposedly licentious behavior the laws seek to constrain. In many ways, matters sexual are to conservatives, especially conservative Christians, the literal embodiment of Rudolf Otto's definition of the Holy: mysterium tremendum et fascinans -- "the terrifying and attractive mystery". And for conservatives, the mystery of sex is all the more attractive precisely because it is terrifying -- and therefore perpetually an object of attempted control, be it by vaginal probes or bathroom-use laws. Anyone with even a working knowledge of Freud will recognize this tendency in the Republican Party for what it is: a massive collective instance of what Freud called "the return of the repressed".
I would write more, but it's early Thursday morning, and I'm getting tired. In fact, you might say I'm wiped out. (Yeah ... I know ... couldn't resist ... sorry!)
James R. Cowles
Gavin Grimm ... Daily Kos ... Creative Commons Attribution-Share Alike 3.0 Unported
Rest room ... Mark Buckawicki ... Creative Commons CC0 1.0 Universal Public Domain Dedication
All-gender restroom sign ... CheckingFax ... Creative Commons Attribution-Share Alike 3.0 Unported
Trans flag ... Pixabay ... Public domain