Gender Does not Equal Sex


It’s easy to get distracted by the Great Transgender Bathroom debate. However, it’s important to understand that the legislation in question goes far beyond public restroom and locker room policy. The North Carolina state law, HB2 not only nullifies Charlotte’s ordinance protecting transgender people using public facilities, it goes much further. HB2 declares that municipalities cannot create their own rules with regard to their citizens that go beyond the rather anemic state regulations–regulations that do not include protections for LGBTQ people. The law also bars municipalities from raising their minimum wage above that established by the state because…you know…why not.

In other words, it’s a horror show.

Focusing our attention on the bathroom issue rather than the larger implications of discriminatory policy is par for the course. Emphasizing a hypothetical worst case scenario in which predatory straight men take advantage of such ordinances in order to rape women and girls, is a conscious strategy.  After all, openly declaring the “right” to discriminate against “those people” is politically unpalatable regardless of who those people happen to be. One cannot just come out and say, “Look, transgender people are disgusting and I don’t want them around.” Activists for the last fifty or sixty years have done a fine job marginalizing claims that legitimize discrimination and prejudice. Instead, claims makers must play upon our fears and prejudices in order to sell their regressive policies. The corresponding association of LGBTQ people with perversion, pedophilia and predation is equally intentional.

This rhetorical strategy is typical of those on the regressive side of the debate. When their position is indefensible in larger moral terms, as discrimination always is, they must ignore the larger implications and focus instead, on a nuanced worst case scenario, even if that scenario is nothing more than hypothetical. Nobody can really argue against someone who truly sees themselves as a woman using the lady’s room, so we invent a boogeyman designed to frighten us into submission. This strategy is quite effective.

Still, it’s of sociological significance that the boogeyman is an otherwise straight predator targeting women’s restrooms. After all, restrooms are inherently scary places. There are few places in a person’s daily life in which they are more vulnerable than in a public facility. Consequently, public restrooms have long been the focus of debate when discussing expanding freedoms and privileges of “those people.” Since the late 19th century, when public restrooms first arrived on the scene, they have been segregated in terms of class, race, sexuality and gender. Gender is the last remaining arena of legal segregation.

It’s no wonder. For western civilization, gender differences are among the most reified of all social constructs. In other words, that which constitutes our understanding of gender is assumed to be right and natural. Any variation from our assumptions are considered perversions or pathologies of the natural order of things. Furthermore, what we know about gender mostly begins and ends with assumptions about genital structure. We hear this confirmed when discussing the restroom issue. “Nobody with a penis should be in the ladies’ room!” is among the most common retorts.

The very existence of transgender people complicates this narrative. This is especially true in an age when one who identifies as being a man or woman, despite physiology, can significantly and convincingly present themselves as desired rather than as born. A transgender man, with the help of hormone treatments and other technologies, can live as a man, facial hair and everything, regardless of genital status. Transgender people are nothing new, but the technology and our contemporary aversion to wanton discrimination place such agents in a more central, more visible position by which to challenge our assumptions about what is natural.

Sociologists and gender scholars understand that gender itself is a social construct. In other words, gender is a model through which members of a society interpret and understand a given reality, in this case the different roles and status of men and women. Social constructs are negotiated at the social level until a consensus is formed. Over time, this consensus is understood as being natural. So a social construct ascribes a natural origin to social phenomena. First there was Adam and Eve, or an evolutionary advantage to sexual reproduction defining two distinct sexes.

In essence, social constructs are fictions that we all accept as true in order to get along together. Society would be an impossibility if we all acted upon our own understanding of reality. That’s not to say that social constructs are complete fictions. Indeed, there does seem to be a correlation between gonad structure and gender, but this leaves our understanding of gender as incomplete. There are significant variations, and there is no way of really knowing where the gender construct ends and the reality of men and women begins and to what extent sex and sexuality are natural informants of our lives.

For the most part, however, the gender fiction is easy to embrace in our daily lives. The man/woman, masculine/feminine dichotomy is sufficient for most of us to get along in our society, interact with each other and understand each other as men and women. In fact, under normal circumstances, transgender people are not an open contradiction to our assumptions about the natural status of gender. For the most part, transgender people still frame themselves and their presentation of self around the established genders. One transgender woman pointed out, “I’m a woman. I’m not some third sex.” So unless her presentation as a woman is so flawed that it cannot be ignored, cisgender people can go about their everyday lives comfortable in their accepted gender fiction.

That is, until it comes to the vulnerability of public restrooms. Then the variations against our assumptions about what is right and natural is challenged by the reality of those who deviate from the norm. It becomes clear that our social constructs defining the parameters of gender as gonadal are simply inadequate. We are, therefore, confronted with a choice. We can uphold the social construct by stigmatizing those who do not fit the norm, or we can negotiate a new construct that incorporates LGBTQ identity. The former strategy is becoming more and more difficult to justify.

Social constructs tend to be constraining while the Enlightenment enterprise of science and reason is intended to be liberating. That is why it has been the mission of those who study gender to decouple this construct from sexuality. There’s more to our understanding of self as men and women than the genital contours of gender. Gender and sexuality may correlate. There may even be a natural component to this correlation. Regardless, it is not a complete correlation, thus it is inadequate in describing the full tapestry of humanity. Transgender people are not new, nor are they specific to our culture. Our society, our cultural paradigms of humanity and tolerance are becoming more inclusive in the face of social movements. At the same time, technology is advancing in ways that advance the lives and interests of LGTBQ people. The social process is underway that will ultimately decouple gender and sexuality. This is a good thing, but as this process is, in essence, a great social negotiation, it will not go without contest.

Where will this decoupling lead us? After all, we are never free of social constructs. At best, one construct is ultimately replaced by another less constraining. But what would that look like?  To what extent are we still constrained by constructs of “man and woman” or do we need to come up with some other construct–a two-spirit?  After all, there are those who identity as a third gender, or as without gender. Just how far can we stretch a construct before it bursts? How exactly do we intentionally negotiate a new construct?

We really don’t know the answers to these questions, but the process should be interesting. It’s very possible that the Great Bathroom Wars of 2016 is just the opening argument in the larger, even more important debate. Perhaps this is just another stage in the larger mission of expanding our concepts of humanity.

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