At various points in this unusually grim election cycle, I’ve tried to cheer myself up by remembering that there’s at least one good thing about this year’s Republican presidential primary: it will end. Messily and unpleasantly, perhaps, but still: eventually and inevitably, there will come a day when I no longer write about Donald Trump. (“Trump is a grotesque and repulsive clown. He is not worth my time, or yours,” I wrote, in an abundance of optimism, last July.)
Lately, though, it’s hard to ignore that the end of the primary will not mean the end of the noxious stupidity that has characterized it. The Texas press corps, at least, shouldn’t expect much relief. The dauntless Chris Hooks, at the Texas Observer, has recently shouldered the burden of taking a serious look at Texas Agriculture Commissioner Sid Miller. The intrepid Lauren McGaughy, at the Dallas Morning News, is unveiling various forms of funny business at the office of our feckless Attorney General, Ken Paxton. The fearless Jim Malewitz, at the Texas Tribune, went straight into the abyss—the Capitol extension, that is—and emerged with a report on state Senator Bob Hall’s interim activities: “Texas Lawmaker Warns of Outer Space Death Pulse.”
Feeling some ethical impulse to do my part I figured I’d take a swing at the great national debate about entry requirements for public bathrooms.
For those who haven’t been keeping track, a quick summary of where things stand. Since last June, when the Supreme Court struck down America’s remaining state-level bans against same-sex marriage, the nation has been in need of a new hot-button issue. Some, such as Kody Brown, the star of a reality television show called “Sister Wives,” were seemingly hoping that polygamy bans would emerge as the next great moral frontier. But in a display of bipartisan consensus, a majority of people who dabble in the public sphere opted for an increased focus on the rights of transgendered Americans.
One of the first battlefields, as fate would have it, was in Texas. Last November, voters in Houston opted against a ferociously contested equal rights ordinance, known as HERO, after opponents ran ads warning that extending a municipal promise of protection against discrimination to fifteen groups of people, including trans men and women, would lead to an epidemic of men in drag sauntering coldly into public bathrooms that are explicitly reserved for women. As longtime readers will remember, I was more sanguine about HERO’s defeat than my Houston-based colleagues John Nova Lomax and Mimi Swartz, because I didn’t see the results as reflective of some bigotry specific to Houston or Texas. As a result of the opposition’s invidious and misleading ads, the city was the first in the nation to have a heated public debate over transgender rights; I thought the same debate could easily have yielded the same result anywhere. For better or worse, that seems to be the case. Since HERO’s defeat, a number of cities and states have taken up various bills and ordinances related to trans rights, and conducted their own debates about who should be allowed in the ladies’ room; many, if not most, have opted for the draconian approach.
One example is North Carolina. In March, after Charlotte passed a nondiscrimination ordinance similar to HERO, the state’s General Assembly held a special session to consider legislation that expressly overturned Charlotte’s ordinance and, more generally, pre-emptively bar any local governments from passing any such ordinances in the future. The bill passed the House and the Senate, was signed by Governor Pat McCrory, and therefore became fodder for the presidential race.
In April, then, Trump was asked for his view on the new law. In keeping with his stream-of-consciousness approach to crafting public policy, he expressed his approval of North Carolina’s intentions, before announcing his opposition to its actual approach: “North Carolina did something [that] was very strong, and they’re paying a big price, and there’s a lot of problems…There have been very few complaints the way it is. People go, they use the bathroom that they feel is appropriate, there has been so little trouble.” When pressed for clarification, he said that he would let Caitlyn Jenner use whichever bathroom she prefers, should she have need for the facilities at Trump Tower.
Trump thereby created an opening for Ted Cruz, who—with an eye to Indiana’s increasingly crucial May 3rd primary, no doubt—summarily accused him of wanting to allow grown men into the bathroom, without any concern for the little girls who might consider the women’s room a safe space. In Cruz’s telling, Trump is on the same page as the presumptive Democratic nominee, Hillary Clinton, who had registered her opposition to North Carolina’s law in a tweet after its passage: “LGBT people should be protected from discrimination under the law—period.”
The debate continues to rage, and here in Texas, Lieutenant Governor Dan Patrick has indicated that he thinks the Texas Legislature should pass a statewide measure on the subject, similar to North Carolina’s, when it meets for the 85th regular session in 2017: “If it costs me an election, if it costs me a lot of grief, then so be it. If we can’t fight for something this basic, then we’ve lost our country.” Okay. With that, I think, we’re all caught up.
So here’s my take on the debate: this is a ridiculous waste of time. I understand that it’s political theater, but if you care about the issue on the merits—and everyone, on all sides, is at pains to insist that they do—it’s silly to ignore the fact that the optimal approach to the public policy issue was laid out by Dennis Daugaard, the governor of South Dakota, several weeks before North Carolina even passed its law. Daugaard vetoed a bill, similar to North Carolina’s, which would have stipulated that all children in the state’s public schools be obligated to use the bathroom corresponding to their sex at birth. As Daugaard explained at the time, the bill “does not address any pressing issue concerning the school districts of South Dakota.” Furthermore, he continued:
As policymakers in South Dakota, we often recite that the best government is the government closest to the people.
Local school districts can, and have, made necessary restroom and locker room accommodations that serve the best interests of all students, regardless of biological sex or gender identity.
Daugaard is exactly right, from a humanistic, pragmatic, or ideological perspective. (He is, like North Carolina Governor Pat McCrory, a Republican.)
Trump, Cruz, and Clinton, by contrast, have all fallen short, for various reasons. Let’s consider the three in turn.
Trump’s argument against North Carolina’s law is consequential, which is an inappropriate basis for assessing the optimal approach if access to public bathrooms is a civil rights issue.
Cruz’s criticism of Trump mischaracterizes the legislation in question and, by extension, Trump’s position on it. In Cruz’s telling, Trump is making a case for men to have the right to use the women’s restroom; in reality, Trump was simply saying that the state should have left well enough alone. In addition, Cruz is actively promoting a stereotype that’s both invidious and nonsensical. I can’t claim to be an expert on trans issues and experiences—I would encourage everyone to read my colleague Francesca Mari’s profile of Colt Keo-Meier, Texas’s preeminent researcher on the subject—but if a predatory adult man is determined to stalk little girls in public bathrooms, local ordinances on the subject are hardly going to stop him from doing so.
Clinton, meanwhile, is making politically voguish blanket statements on Twitter without seeming to have grappled with certain known and as-yet unresolved tensions between transgenderism and feminism, which Michelle Goldberg laid out, at the New Yorker, back in 2014.
While we’re at it, the appeals court was right to throw out Kody Brown’s lawsuit against Utah’s polygamy ban. Polygamy bans are not analogous to bans on same-sex marriage. The latter discriminate on the basis of gender. The former discriminate on the basis of views about monogamy.
And with that, here’s hoping that some sane news stories will come to Texas soon—hoping, that is, but not expecting.