21. Department of Justice v. North Carolina — Human Biological Waste Facilities, Showers and Sex

North Carolina:  Persons may only use bathrooms, locker rooms and showers that are designated for the sex that appears on their birth certificates.

U.S. Department of Justice:  In any publicly-funded facilities, and in the facilities of companies employing more than 10,000 people, persons may use bathrooms, locker rooms and showers designated for the sex they regard themselves to be.

May 9, 2016

Let’s cut the crap.

I’ve listened to so much imprecise, inaccurate and uninformed opinion and description of the elements of this issue in the past couple of days that I feel the need to clear the air.

First of all, this is a question that it was once, as long ago as the mid 1990’s, my responsibility to resolve.  Second, I attended a recent talk at the local Humanist Society given by a dainty little person with a high voice and short hair who insisted he was a man who had once been a woman, but without providing any anatomical details by which the audience could make an independent judgment.  She asked to be called “he”, and frankly I’m not sure how I want to handle that.  By all of the cues upon which I have come to rely during my four score and one years, the speaker seemed to me to be a woman.  So I naturally thought of her as “she”, and that is how I will describe her for now.

Next, I find that our language regarding these matters is so thoroughly euphemistic that it threatens to derail a clear view of the issues.  So for the sake of this essay I am going to jettison words like bathroom, toilet, rest room, powder room, washroom and water closet, most of which describe activities that we do not do in the shitter or the pissoir. For the sake of avoiding jarring or distracting anglo-saxon terms, however, I will employ ‘defecate’ and ‘urinate’ because they are at least direct in meaning, though softer to the ear because they come from the Latin terminology and therefore sound more clinical than vulgate.

As I understand it, the federal Department of Justice (DOJ) rulings regarding the new law in North Carolina actually effect not only places where persons of all ages might defecate or urinate, but also locker rooms where they might change for work or for school athletics. The DOJ rules will also apply in workplace, school and health-club group shower facilities.  The issue has arisen because for the past few years political activists among those people who self-identify as Lesbian, Gay, Bisexual and Transgender (often known as the LGBT community) have been agitating to be allowed to use the facilities assigned to the sexual identity with which they feel most comfortable.  And to be complete in our avoidance of euphemisms, let us agree that, despite mythology, homosexual women are not all from the island of Lesbos, and not all homosexual men are caricatures of effeminacy, fey or “gay”.

By the way the term “gender” itself has within recent decades, become a euphemism for sex.   Not long ago gender used to refer only to things masculine, feminine or neuter: i.e., social, cultural or linguistic differences.  Biological maleness and femaleness was called, sex.  Now, in the interest of delicacy, and to avoid saying ‘sex’ out loud, some people have taken to referring to male and female ‘gender’.  (derisive snort)  

In terms of the somewhat militant invasion of facilities for the disposal of human biological waste, that started little more than two decades ago, when women began barging into men’s facilities at sports stadia.  Women’s facilities, given that women generally urinate sitting down and require more booths, were in deplorably short supply and the lines in front of Women’s Rooms were many times as long as those in front of Men’s Rooms.  While unproven, it always seemed to me from accounts at the time, that these invasions were led by women who were somewhat more assertive, aggressive even, and perhaps not as intimidated, nor even impressed, by the thought or sight of male genitalia.  But that’s just an educated guess.  In the Bay Area it was the assertive Berkeley Woman who strode past the urinals to claim a booth for herself, and bully for her!

So in her talk, the LGBT speaker who thinks of herself as a man focused upon the problem of finding a place to defecate or urinate, and basically said it was unfair and hurtful that other users of the facility questioned, by look, behavior or word, her right to be there.  This, she said, was distressingly insensitive and should never be done by a thoughtful person.

During the question period at the Humanist talk, I raised the issue of the expectation of privacy that men or women might have, which heretofore has included the assumption that others using facilities for these particular bodily functions would be of the same sex. I mentioned that the seeking of privacy for urinating or defecating seems to be a common tendency among many mammals, possibly because of the vulnerability to predation that these functions may produce.  I suggested that the instinctive need for privacy might come from a very ancient (limbic) part of the brain and might represent a very strong interest, deserving of respectful accommodation.   To which others suggested that even if real, such an emotional need might easily be overridden by (cortical) reason — that there is no longer such a danger in the modern epoch.  The fear is atavistic, they implied, serves no function, and needs to be relinquished.

It wasn’t until a week or two later that an adventitious rebuttal to that argument appeared in the form of a documentary about India that I will describe in a few moments.

Back in the mid-’90s, as I said, I was faced with these same issues in a real-life case that, for me,  illustrated the complexity of the relevant factors.  As a company medical director I was asked to decide when a male mechanic undergoing sex change could begin to use the women’s locker room and shower.  The thing is, male to female sexual reassignment begins with several months of female hormone treatments resulting in the development of female breasts.  This progresses along perhaps with psychological counseling, and beginning of wearing women’s clothes, perhaps the use of makeup, depilation and so on, but before the patient undergoes surgery to remove the penis and testicles and to create a surgical simulation of a vagina.  In this  particular case the mechanic had breasts, had grown his hair long, had lost his facial, chest, axillary, arm and leg hair, but still had a penis.  So with whom could he share locker and shower space without anyone experiencing the stress of feeling undressed in the presence of strangers of the opposite sex?  With neither sex, actually.

My recommendation at the time was that the man could change from street to work clothes with his female co-workers, but could not undress or reveal the part of him that was still male.  To change those particular undergarments he would have to find a private space within the women’s locker room or not change them at work.  Generally speaking, my thought was that individuals in transition should not expose parts of themselves that identified them as being of the opposite sex than others using a sexually segregated facility.  The compromise worked out well enough in that particular case.

In the North Carolina controversy most of the concern of the public and the legislature seems to be for the comfort and safety of women and girls.  The U.S. Department of Justice is seeking to impose rules that will effect public, school and business facilities for urinating, defecating, showering and changing, and there seems to be a fear that, using the DOJ rules as a pretext, males will seek to enter places designated for girls and women.  

Opponents of the North Carolina law and supporters of the federal action, as well as many journalists in their interviews of the litigants, scoff at any hypothetical danger, and aver that such a fear is irrational, atavistic and bogus, since there have been no such cases ever reported in North Carolina.  Supporters of the state law have had to agree sheepishly that it is true that there have not.

But is our deeply emotional urge for privacy when defecating and urinating, and to a greater or lesser extent during any time we are naked and undefended, as useless a vestige as the vermiform appendix?  Is the human race far beyond any actual need for privacy during these moments?  

Well, first of all I think that even an emotional need is a true need and deserves to be respected, especially when it is this deep and powerful.  But more to the point, I saw a full-length documentary only a month ago about a serious, present-day problem that grows steadily more dangerous in parts of India.  As it happens, there are not only no public facilities for defecating and urinating in those regions, but there are also no such facilities in most private homes either.   Everyone simply has to find a place out of doors to defecate, urinate, or wash.  Moreover, there are no places, public or private, where women may apply or discard blood absorbing products during menstruation.  The report said that it is the common practice was for women to wait until they returned to their homes, and then, at night and under cover of darkness, to steal outside to some nearby field or hillside to relieve themselves.  And this has resulted in a large and ever increasing number of rapes and murders of women and girls, apparently while they are seeking a place to empty their bowels or bladder in the privacy of darkness.

In view of this contemporary phenomenon, one might draw the inference that it is because we have well-lighted sex-segregated facilities that are easily accessible to women, sanitary and private, that there are few or no cases of molestation or assault to which we can point as an indication of the need to maintain sexually segregated facilities.  The irony being that we can’t prove the need for sexual segregation where we urinate, defecate, change or shower, because we have sexual segregation where we urinate, defecate, change and shower.   Given the state of our nation’s plumbing — the ceramic and plastic kind — we might not ever experience anything like the risk level Indian women encounter, but the Indian phenomenon does reveal that there are a significant number of predatory men around even in these modern times, and that they probably should not be given completely voluntary access, solely on their own say-so, to facilities intended for women and girls.

In an age when “gender reassignment”, though still quite rare, has, since Christine Jorgensen, become slightly more common, the North Carolina solution, to have individuals use the facilities with the same label as the sex indicated on their birth certificates, does not seem fair or reasonable.  But it also seems patently naive and foolish merely to accept whatever gender an individual self-selects.  Since the number of sex reassignments is still manageably small, it might be practical to require that sex other than birth sex be certified judicially, with appropriate input from medical experts.