Bathroom Boondoggle Part 3: Trojan Horses - What This Is Really About

Bathroom Boondoggle Part 3: Trojan Horses - What This Is Really About

This is part three in my series on the Transgender bathroom issue. Here are the previous installments:

Bathroom Boondoggle Part 1: Intersex and Evangelical Denialism

Bathroom Boondoggle Part 2: Rape Panic and Violence Against Minorities

In the first, I laid out evidence that sex and gender are not binaries - something that should be considered scientifically indisputable - and has been acknowledged for millennia. However, theological considerations have led to denial of basic reality.

In the second, I point out the lack of any credible threat posed by transgender people, detail the history of the use of fear of rape to justify violence against minorities, and explain the profile of predators who are a far greater risk. (Hint: they are more likely to be religious than the general population, and are likely to know and groom their victims.)

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So, given that there hasn’t been a rash of transgender crimes, what is driving this push for legislation?

Legislation doesn’t come out of nowhere. It requires a concerted and determined effort. In fact, what you see at work is a highly organized blitz.

Legislation. Multiple articles in numerous forums. A full-out campaign by certain Evangelical political groups. This is a planned, organized, and intentional operation.

This is the Evangelical Political Machine in full force.

So why now? Why this?

First, let me note a couple of factors that I believe did influence the timing a little:

1. Caitlin Jenner

She’s been in the news, so people are talking about transgender already. At least part of the job of publicity is therefore done.

2.     Election Year

There is no doubt that this has had an effect on timing. You can set your watch to the election cycle to see various advocacy groups spool up every election year. This happens on both the left and right, so it isn’t a partisan thing. However, since I have more experience as a former member of both the Republican Party and the Religious Right, I will primarily note their obsessions.

Every time there is a presidential election (with the corresponding issue of Supreme Court appointments), the Religious Right starts beating the drums on a few predictable issues. First is abortion, naturally. Second is LGBTQ issues - namely the imagined threat they pose to the children. (I grew up hearing from the James Dobson’s of the world that all gay people wanted to molest children. Since I actually knew gay people, um, it rang a bit hollow…) Third is gun rights. Sure enough, as soon as this election got into full swing, out came the claims that President Obama was waiting to confiscate our guns.

So yeah, the election year is undoubtedly part of this. Get people all worked up in a fear and they’ll come out to vote.

Over the last few years, I have noticed that these issues I named above have been wielded by the political class to keep Evangelical voters on board for political beliefs which I am seeing more and more are actually counter to the teachings of Christ. Rage about abortion and fear of LGBT people have been harnessed to ensure that white Evangelicals vote GOP no matter what.

But this year, even more so. The GOP has chosen a candidate who embodies, personally and professionally, every vice I was taught was wrong as a child, and who disdains every virtue I had inculcated in me. And who furthermore has publicly shown contempt for human rights and the Constitution. I won’t belabor this in this post, but I do want to point out that this time, there is little beyond an appeal to tribalism and fear that the GOP has to keep Evangelicals in line, so I am completely unsurprised that this issue was raised now.

But I don’t think this is the primary reason.

3. Obergefell v. Hodges.

I want to make one thing clear at the outset:

I believe that the bathroom issue is a Trojan Horse, a fake crisis used to further other political goals. 

A Trojan HORSE, not a rabbit!

This isn’t hard to figure out. All one has to do is actually look at the texts of the laws. As I intend to show in this post, the real targets of these laws are LGBT people, those who have sex out of wedlock, and those who do not adhere to gender stereotypes.

I want to examine a current State law, plus a law that Congressional Republicans are pushing at the national level.

The worst of the current state laws is that of Mississippi. The bill does far more than legislate which bathrooms must be used by whom. It also explicitly legalizes the denial of employment, housing, goods, services, and government services to LGBT people, whenever a person claims a “religious belief.” 

I’ve covered these issues in pretty good detail in my post on LGBT Discrimination and “Religious Freedom” laws.

I want to add another here as well. The Mississippi law contains this clause as well: “The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person establishes sex-specific standards or policies concerning employee or student dress or grooming.”

Isn’t that interesting? So, despite Federal law to the contrary, employers can force women to wear skirts, makeup, heels, whatever. Women who didn’t fit the “feminine” ideal could be denied employment.

As a lawyer, it wasn’t that long ago that judges would insist that women could not wear pants in their courtrooms without being held in contempt of court. (I have a few older female colleagues who talk about those days.) Believe me as well when I say that there are plenty of people out there who believe that women should never wear pants. My wife and I both grew up around them.

Let me note as well that government employees are allowed to discriminate this way - so a supervisor could require his or her underlings at a government office to wear skirts of a certain length.

I also discussed this a bit in my review of Because of Sex, which details the way that flight attendants were subject to firing if they gained weight, married, or failed to live up to their employers’ standards as “sex objects” for wealthy men to ogle.

One final one, which is also pretty bad in practice is the part that includes “sexual relations are properly reserved to such a marriage.”

This is not accidental or incidental. I believe it is every bit as crucial to the proponents of the law as the right to deny housing and employment to LGBTQ people.

Simply put, this is the right to deny all of those things to those who have sex out of wedlock.

I am not kidding you. It doesn’t take a rocket scientist - or a lawyer - to understand who will suffer most under that clause. It’s going to be lower income women who have children out of wedlock. That is the point: to punish women for having sex.

I’m also going to go out on a limb here and say that, given the open hostility this election cycle toward minorities, I believe this will also be used - in practice - to avoid the Civil Rights laws. I suspect it will be primarily brown skinned mothers who will be denied housing and employment, rather than middle class whites who happen to “mess up.”

Let me also cite here the proposed Federal law, FADA. You can read an analysis here, and here and the full text of the bill here. 

For the best analysis of the actual meaning of the Mississippi law, see this detailed article (in PDF) written by a group of law professors from schools including the University of Mississippi, Columbia Law School, University of Southern California, and more. It makes it abundantly clear exactly what is at stake and why these laws are a flagrant violation of the First Amendment.

One thing I think is particularly important to note is that the law gives the right to employers, landlords, government employees, and so on, to demand the answers to highly invasive and personal questions, such as one’s chromosomal makeup, the appearance of one’s genitals, one’s sexual history, and one’s sexual attractions.

The law is breathtaking in its scope. The article is, if anything, soft pedaling the potential results. I know. I’ve lived among the people behind this bill - the dominionist/political machine - and read the hateful propaganda from the various “Family” organizations - and they have wanted this for a long time: the ability to inflict punishment on those who do not share their sexual rules. 

Yes, they want to be able to fire employees who become pregnant out of wedlock.

Yes, they want to be able to deny housing to people they believe are having sex. (One of my law school professors argued in front of the California Supreme Court to that effect.)

Yes, they want LGBTQ people to be denied family medical leave, Social Security checks, and so on.

Yes, they intend that government employees be able to refuse to do their job.

Yes, they intend that LGBTQ youth be refused counseling and health services at school.

Yes, they intend that the children of LGBTQ people be refused medical care.

I should point out too that the law gives this blanket exemption for religious belief to government workers, for-profit corporations, non-profits. All of these can continue to receive money from the government or tax subsidies despite refusing to hire those who don’t follow the same sexual rules.

Also, there is no balancing test. The religious belief always wins, regardless of who is damaged by it. It’s basically a “hurt people however you want, as long as your religion tells you to” card.

As I pointed out in my previous post, this is nothing less than hate, and I am sick of pretending it is not. 

 Yes indeed.

There has been a longstanding rage in certain Religious Right circles - the ones with huge influence, particularly with the older generations - that people are having sex we don’t approve of, God will smite us if we don’t stop it, and that damn government won’t let us punish people for their sexual sin!

Let me be clear - and fair - here. While there are a surprisingly high number of people who do harbor genuine hate for LGBTQ people, I believe there are many in the rank and file of Evangelicalism who are not on board with this political agenda. Many, I believe, would, in their heart of hearts desire to be compassionate and loving - and probably have acted that way in person.

In fact many of us - particularly among those under age 50, although there are a few Baby Boomers too - are just plain appalled by the political agenda of hate and marginalization directed at the LGBTQ community. A few of us are speaking up, even though we risk relationships with friends, family, and the Evangelical church to do so.

But decades of the political wing stirring up hate and fear has done a lot of damage. There continues to be a lot of fearmongering from the pulpit and in Evangelical publications. There is also a focus on making sure that Evangelicals don’t bend one single bit on the sexual rules.

This means that there really hasn’t been any pushback against the political agenda. Because disagreement with the “punish the gays” agenda is seen as unacceptable compromise that will get you expelled from Evangelicalism. As I myself have been told, “We can’t let our compassion change our minds about what god calls sin.” And thus, those who would stand up against hate are silenced. And the political agenda of hate continues. 

This brings me back to Obergefell. When that case came down - a huge loss for the Religious Right - the strategy shifted. Since government will no longer prevent LGBTQ people from marrying, then society needs to persecute them instead. This is related to the belief that God will smite our nice little country because of the sex people are having.  We have to do something about it, somehow, or zap!

One problem that the Religious Right is encountering, however, is that public opinion has shifted, and it is getting more difficult to find support for their hate. So they couch this in terms of “religious liberty,” because it sounds better than "hate your next door neighbor, but don't forget to say Grace." But even that may not be enough.

Voila! A perfect Trojan Horse!

People may not come out and vote for a law that primarily enables persecution of LGBTQ people, but they will come out and vote to keep predators out of bathrooms! It’s perfect! Drum up a phony crisis, with children at risk, and you can pass what you really wanted to all along, which was legalized (and government protected) pogroms against LGBTQ people - and those who have sex out of wedlock.

This has been a long term goal of the Religious Right for decades: use of societal and government pressure to enforce religious sexual rules on everyone. I think it’s time we acknowledge this for what it is. It is a religious freedom issue - but not the way the Religious Right thinks it is.

Not everyone shares the religious belief that sex should only be between a man and a woman after saying vows. Not even all Christians, incidentally. And certainly, as I pointed out once before, monogamy hasn’t even been a mainstream religious belief for that long. People have had different beliefs in the past, and often have different beliefs now. For the most part, people’s behavior and beliefs are linked. (Although, clearly, given the high rates of premarital sex among even the most strict of Christians indicates a great deal of hypocrisy in that direction…)

Thus, it is perfectly understandable that people whose beliefs, religious or otherwise, do not forbid certain sexual acts may well do them. For a person to have sex which he or she does not believe is morally wrong isn’t some sort of an affront to everyone else - it’s to be expected. As Saint Paul once said regarding issues of personal conviction, “Let every man be fully persuaded in his own mind.” (Also in that passage is one that the Religious Right appears to have forgotten:
“Who are you to judge the servant of another?”)

Celibacy, whether temporary or permanent, is (for the religious) a religious sacrament. Most of us would, I expect, agree that we have no business forcing people to attend church. Similarly,  we have (finally I hope) agreed that abstaining from alcohol or specific foods is a religious or philosophical decision of the individual, not one to be made for others by the government. Many abstain for religious reasons, but we do not feel entitled to punish those who choose not to abstain. (Well, Prohibition...maybe we Americans DO rather love to force our beliefs on everyone else…) Likewise, to force others to participate in the religious sacrament of celibacy when they don’t share those religious beliefs (or are convinced they are called to celibacy) is equally ludicrous.

Just like I don’t want to be interrogated about my religious beliefs in order to get a job, a house, a meal, a government license - I also don’t want to be interrogated about my sex life. It isn’t everyone’s business.

I don’t think this would be such an issue if it weren’t for two things.

1. The Religious Right believes sex is the one evil that God hates.
2. The Religious Right fears that God will smite Christians if they don’t prevent others from having sex.

This is Dominionism in action. (See links below.)

Well, that and the way that the all too stereotypical “Sister Bertha Better Than You” types love getting up in the business of others. (Although, come to think of it, it sure seems to be mostly old men, doesn't it?)

The point here, though, is this: one particular religious belief is being given special protection by the law. You can harm others in your capacity as an employer, landlord, vendor, or even government servant as long as you are motivated by this particular belief.

It is a violation of the first amendment to give a preference for one religious belief over another, and this applies to beliefs about sex too. 

Please read the article by the law professors if this concept is still giving you difficulty.

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I’ve cited Peter Enns before in this series, and I think he also makes a good point that applies here as well. When we are seeking to exclude people from society (and that is exactly what these laws are aimed at), we say something about the god we worship.

“Whether or not we are even aware of it, how we act reflects what we deeply believe. In fact, as Christians, there is no truer measure of what we really believe God is like, deep down, the God that really drives us and energizes us, our life source, than how quickly we feel the need to erect walls and continually narrow the borders of who is in and who is out.”

The view of god that leads to this is of him as “fundamentally hacked off, retributive, touchy, demanding of theological precision, uncompromising, takes-no-prisoners-and-gives-no-quarter, whose wrath needs to be appeased so watch your step.”

I hope to flesh this out a bit in a further installment, but I think it is this view of God as demanding that we be absolutely correct in our views of sex, gender, and sexuality, and more than eager to smite us if we give one single millimeter or fail to be as hateful as possible to those don't follow our rules.

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Gender Policing

I’m going to go one further with this issue as well. This isn’t just about sexual policing - although it is primarily about that.

It is also about gender policing, which is inextricably tied up with sex. (This could be a future series - human sexual rules have always been about controlling women in order to ensure that paternity is known.)

The Religious Right has strong beliefs about what males and females should look and act like, and enforcement of these norms is a feature of the bathroom laws.

Let’s look at who would tend to get prosecuted under these laws.

First of all, I think it is pretty obvious that posting armed guards at every bathroom is impractical in the extreme. Certainly actual law enforcement isn’t going to be posted at every bathroom in America.

Instead, these laws would require some form of citizen enforcement. Probably mostly in the form of busybody old ladies calling the cops on anyone they don’t think should be in the bathroom. Well, that and individual businesses harassing transgender people they didn’t want to have to serve in the first place.

So who is going to get busted?

Well, “butch” women, to start with. That would include my intersex client. It would also include one of my heterosexual cisfemale clients who just happens to dress butch. (I’ll note that overweight and older women are at particular risk for looking “male” from certain angles - at least if you are expecting a certain gendered look. I’ll also mention here that cancer patients who don’t wear wigs could also look “male” enough to be harassed.)

And guess what? Many androgynous and “butch” women have in fact been harassed. 

Just as in the case of sex, gender presentation is believed by the Religious Right to be their business. That is, that they get to enforce how everyone should dress and act - whether or not that person shares their religious beliefs. (I blogged about Modesty Culture, which is just one of the ways the Religious Right enforces gender-based cultural preferences as if they were God’s Will For Everyone™.) 

Gender presentation is the same thing - and it usually reflects the fashions of the past, rather than the present. Even the longstanding fight over women wearing pants - settled in the legal sense, but not in the religious sense, clearly - is about a past culture. And about a particular view of women’s roles in society.

So I believe that the fact that bathroom laws are much more likely to result in the harassment of women who aren’t “feminine” enough is viewed as a feature of the laws, not a bug. It is just gravy that they can be used to bully women who do not conform to the image that the Religious Right wishes them to.

Some history is interesting in this regard.

Not too many know that when two pieces of legislation involving women’s rights were debated in the past, the specter of “men in the women’s restroom” was raised.

In the case of the Civil Rights Act of 1964, when an amendment was added that included discrimination “because of sex,” there was the outcry that it would mean bathroom difficulties. But also, there was the fear that eliminating discrimination in employment would lead to a “sexless society.” As Gillian Thomas put it:

But I don’t think sex discrimination was ever understood purely as sex organs, even in 1964. Look at the floor debate over Title VII. When legislators talked about outlawing sex discrimination, they were really talking about men and women’s place in society, in the family, in relation to our laws. For instance, Rep. Emanuel Celler—the floor manager of the Civil Rights Act—gave this hand-wringing speech wherein he said, “If we give equal access on the job to women, what does this do to alimony laws? Rape laws? The draft? What does this do to family roles? Who’s responsible for the upbringing of children?” He saw the law as the upending of the whole social order.

(You can read more about gender-based discrimination in employment in Gillian Thomas’ excellent book, Because of Sex, which I reviewed here.

Likewise, during the ill-fated attempt to pass the Equal Rights Amendment in the 1970s, the most effective tool was the fear of “men in women’s bathrooms.” But, as usual, it went right from that fear to a more general fear that gender roles would change.

For social conservatives, a world in which sexual distinctions lose their social significance is the nightmare endpoint of all the modernizing trends they decry.” “Down the road, this basically blows the doors off of any boundaries in society—we’ll have a completely sexless society,” Jesse Kremer tells me. Kremer is a Wisconsin Republican lawmaker…

Even now, you see it in James Dobson’s fearmongering and hateful article wherein he makes barely-veiled threats of violence against transgender people. Before you know it, he goes right from the bathroom threat to warnings against the dangers of feminism, which took women out of the home and into the workplace.

It’s all connected.

It’s part of a worldview that sees rigid boundaries between male and female, both biologically (intersex people don’t exist) and socially (men and women must look a certain way, fulfill certain roles.)

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One more group of people are already being negatively affected by the Bathroom Panic: parents.

This one is a bit personal for me. Let me explain. When I was a little kid, I got dragged into the women’s restroom with my mom. I didn’t like it, because I remember getting the stink eye occasionally from some old lady who didn’t like boys in there. Fortunately, I got old enough to use the boy’s room.

Then I became a parent. I had a dilemma: what to do with my daughters? Like many fathers of my generation, I took my kids places by myself as soon as they were born, nearly. You know what? Changing tables are hard to find in men’s restrooms! (It’s getting better, but it is far from universal.) And then, when they are getting potty trained, it gets even more awkward.

And then the worst: the girls are big enough to go by themselves...mostly. So, she heads for the women’s restroom because she is a big girl and can do it herself. (I have very assertive daughters.) And then something goes wrong, and she needs help. Flop sweat time. 

And don’t think the solution is “take your daughter into the men’s room.” 

You know, if we weren’t so obsessed with this, perhaps it wouldn’t be a big deal. But it is. I do not want to get myself arrested as a pervert for assisting my daughters. (Fortunately, the older ones can help the youngest in a pinch now.)

Anyway, this fear-based panic legislation (with, as I showed, is a Trojan Horse for other goals) ends up catching a lot of innocents along the way, with no gain in safety to offset it.

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Links:

I posted it above, but I’ll put it here again because it is so good:

MISSISSIPPI H.B. 1523 & THE ESTABLISHMENT CLAUSE (Columbia School of Law)

A group of law school professors from around the United States explain why privileging one particular religious belief both violates the Constitution and harms vulnerable people.

If you haven’t already read my post on why these “Religious Freedom” laws are actually legalized hate toward LGBTQ people, you can read it here:

If You Support Anti-LGBTQ "Religious Freedom" Laws, You Aren't Really Different from Omar Mateen

There are a number of outstanding comments on that post as well, by astute readers, which also touch on the transgender issue. 

I also wrote a while back on why I believe that Evangelicalism has made a fatal mistake in obsessing about being "right" while neglecting to do right. 

What Will and Will Not Get You "Farewelled" from Evangelicalism: A Primer

I also recommend reading my series on Dominionism, and how it has poisoned Evangelicalism in America:

Dominionism and Evangelicalism PART 1: It's All About The Power
Dominionism and Evangelicalism PART 2: The American Version of Dominionism
Dominionism and Evangelicalism PART 3: Presuppositionalism Has Poisoned Everything

I find this article interesting as well. I was not the least surprised that there is a HUGE generation gap, with older people mostly opposed to transgender people using the bathroom that matches their identity, and younger people generally in favor. If nothing else, those of us my age (nearly 40) and younger are more likely to actually know someone who is transgender.

What was more surprising was that women generally favored letting transgender people use the bathroom of their choice. Men, on the other hand…

So, apparently, the people that are supposedly being “protected” by these laws don’t think they need that “protection.” It’s mostly a bunch of old men. Who knew?  

Update September 2, 2016: Ben Corey wrote an excellent post on how much the ideology of ISIS and Franklin Graham resemble each other. (Hint: a LOT, particularly when it comes to gender and sexuality, and the use of government violence to punish those who do not follow their religious rules.) As I have shown throughout this series, it isn't just Graham - it's the vast majority of of the Evangelical-Industrial complex - those with political and religious power.

10 Ways the Ideology of ISIS and Franklin Graham is Near-identical

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