by Michael Dorf
During the last few years of the public debate over same-sex marriage, social conservatives found themselves making arguments against SSM that some conservative intellectuals sincerely believed but that did not reflect the actual basis for much (perhaps most) of the opposition to SSM. The actual basis for much of that opposition was a view--often but not always rooted in religion--that homosexuality is immoral or even disgusting.
But in polite circles, that's not the argument that was advanced. The argument offered was that marriage as an institution evolved for the purpose of providing a stable home for children conceived accidentally through heterosexual sex and that therefore extending the institution of marriage to same-sex couples was not required by its core purpose. This argument was coherent as an argument against a constitutional right to SSM, because it responded to the objection that denying same-sex couples the right to marry is irrational and thus unconstitutional. It's not irrational, the defenders of SSM bans said, because the failure to extend the institution was rational in light of its original purpose. For a number of reasons I won't detail here, I agree that that argument was rightly rejected in the Obergefell case, but at least I understand the nature of the argument in the context of constitutional law. As a policy argument, by contrast, the marriage-was-once-all-about-accidental-procreation claim was a non sequitur. The obvious response was and is: so what? Now that marriage has evolved into something else, there's no good reason to deny it to same-sex couples.
Something similar appears to be happening now with respect to discrimination against transgender persons. I suspect that, as with homosexuality just a few years ago, there is a mismatch between the arguments being publicly advanced for requiring transgender persons to use public restrooms designated for people of their sex assigned at birth and the actual reasons motivating the policy position. For many people, the actual basis for supporting restrictive restroom policies is a view--often but not always rooted in religion--that transsexuality is immoral or even disgusting.
But in polite circles, transphobia is not being offered as the reason to resist trans access to restrooms on the basis of gender identity. The chief argument now on offer is that permitting people to use restrooms based on their gender identity would facilitate assault by cisgender men using the permission for trans women who look like men as a cover to gain access to women's restrooms, where these cisgender men can commit sexual assaults and invade privacy.
Some people make this argument sincerely. Nonetheless, it is a bad policy argument, not so much because it's illogical--one can imagine circumstances in which it might be true--but because the solution doesn't fit the supposed problem. If permitting trans women to use women's restrooms creates opportunities for cisgender predator men to pose as trans women, the "bathroom laws," by requiring transgender men to use the restroom corresponding to their sex assigned at birth, i.e., the women's room, create opportunities for cisgender men to pose as trans men to gain access to women's rooms--unless bathroom police require birth certificates for women's room access.
Moreover, there's no evidence that sexual assault in women's restrooms by cisgender men passing as (cis or trans) women happens often. To be sure, one can say it hasn't happened yet because heretofore a person appearing to be a man entering a women's restroom would have been met with suspicion, but the truth is that in a nation with millions of public restrooms, someone wishing to gain access to a restroom as a means of committing assault already can do so just by sneaking in and hiding--or by choosing a different secluded location. Sexual assault of women by cisgender men is a very serious problem, but public restroom access is a tiny part of that problem--so tiny that it is hard to believe that the freakout about trans access to gender-identity-matching restrooms is motivated by concerns about sexual assault.
What are we to make of the mismatch between actual motives and public argument? It is a sign of real progress towards equality for trans Americans. Sometimes prevarication, like hypocrisy, is a tribute that vice pays to virtue. By not voicing their real (transphobic) objection to trans restroom access, Americans who oppose such access tacitly recognize the illegitimacy of their transphobia. Just as the disappearance from polite discourse of openly homophobic rationales for laws banning SSM (and laws denying gay equality more generally) was both an effect of and a cause of (further) decline in homophobia, so the decline in openly transphobic rationales for laws and policies that disadvantage trans people is an effect and--I hope--a cause of (further) decline in transphobia.