There's a real arrogance to resisting transgenderism.

By Michael Bradley

The resistance to transgenderism and unisex toilets – both from Germaine Greer here and with North Carolina lawmakers – reveals a paternalistic arrogance and threatens to deny physical reality and human dignity, writes Michael Bradley.

When I arrived at Sydney University in 1983 and found that the main student union bar had unisex toilets, it pretty much blew my mind.

The concept of the two genders incidentally discovering each other’s sanitary procedures was not something I had ever contemplated. Imagine my surprise later on when I learned that humanity is not neatly divided into two genders at all.

That’s the journey we’re on, like it or not. As the language has progressed from “gay” to LGBTQIA – lesbian, gay, bisexual, transgender, queer, intersexual and asexual – we’ve all been confronted by the challenge to our traditional understandings of what it actually means to be human.

People respond to this challenge in infinitely varied ways, influenced by their own life experiences, what they’ve been taught and what they believe.

Obviously, if you have a problem accepting homosexuality as a valid way of being, then you’re more likely to really struggle with the less well-understood concepts of transgender or intersex status; and more likely to look askance at the suggestion that the male/female bifurcation – whether in relation to identity or sexuality – is not on solid ground.

The confusion this generates is understandable. As Q&A host Tony Jones said to Germaine Greer this week while she was making her second attempt to explain her position on transgenderism: “I thought you were digging yourself out of this hole, and now I wonder if you’ve just shovelled it back in.” Greer’s response – “I belong in this hole” – pretty much sums it up. These questions aren’t easy.

Back to the toilet block though, because it’s really in the bathroom where we confront the starkest realities of our shared existence. And it’s now provided what’s become an international focal point for the challenges of transgenderism and intersexuality.

On March 23, the General Assembly of the US State of North Carolina passed “House Bill 2” – HB2, or the “bathroom law”. In short, it kills the unisex toilets idea dead.

HB2 follows the modern trend of clothing discriminatory laws in anti-discriminatory language. Thus:

It is the public policy of this State to protect and safeguard the right and opportunity of all individuals … to enjoy fully and equally … places of accommodation free of discrimination because of race, religion, color, national origin, or biological sex, provided that designating multiple or single occupancy bathrooms or changing facilities according to biological sex … shall not be deemed to constitute discrimination.

OK, so no discrimination in the bathrooms of North Carolina, but discrimination is redefined to not include what HB2 is actually all about. That is a legislative mandating of two things: all schools and public buildings in the State must now provide separate bathrooms for boys and girls; and everyone is now by law a boy or a girl (no category for “other”). The last part is achieved by defining your “biological sex” as the gender stated on your birth certificate.

It’s an interesting thing when a legislature feels the need to make a law stating what “is”, as opposed to the more normal role of lawmaking, which is to tell us how to behave. For example: There was a Parliament in another country once which felt so concerned about the prospect of gay people marrying each other that it rushed through a law redefining “marriage”.

These things never end well. It’s a fact, as much as many would prefer otherwise, that the boy/girl thing doesn’t cover everyone. There are many other variants, biologically as well as by choice. The point is not to try to keep redefining the categories, or determine whether anyone is right or wrong. I do not understand comments like this from Germaine Greer:

If you’re a 50-year-old truck driver who’s had four children with a wife and you decide that the whole time you’ve been a woman, I think you’re probably wrong!

The difference between the attitudes of Greer and the North Carolina legislature is hard to discern; they both apparently think they have the right to tell people what or who they are.

Putting aside that prejudice which denies uncomfortable or confronting realities and just gets in the way, of course there is still a challenge here. We didn’t invent single sex bathrooms in the first place for no reason.

Unisex toilets at my school would have led to poor educational outcomes, I’m pretty sure. There is also the sad truth that, for women, the bathroom and changing room are sanctuaries from the sexualised scrutiny to which they are subjected in pretty much every society and away from which no generation seems to have been able to evolve. Much as I’d kind of like to advocate unisex toilets everywhere, I do see the problem with that.

What if a man does decide that he’s a woman, and wants to use the ladies’ toilet? There is a loud objection from those who suspect that he’s wrong about that, or that he’s lying about it. Assuming we can separate out any bigotry in that response from a rational concern (such as that a man with voyeuristic intentions may pretend to be transgender for the purpose of gaining access to a female changing room), then yes, we have a real problem with which to contend.

The solution is not simple, although I do note that earlier violent objections to the sharing of bathrooms and locker rooms with gay men seem to have subsided with time. An understanding that difference does not equate to perversion will make the conversation much more constructive.

Whatever the answer is, it must be founded on respect. Our ultimate human right is the possession of our own identity. A law which says that we cannot define that identity for ourselves necessarily infringes that right. It is the height of paternalistic arrogance to mandate that a person is by some legal definition male or female, as it is to tell them that they are not really gay. We are surely capable of a more sophisticated approach than the manufactured concept of “biological sex”.

There has been a strong reaction to the North Carolina law. Numerous corporations have publicly denounced it and are boycotting the State. As the B Corporation movement, which represents 1500 companies worldwide who share a charter of conducting their business “as if people and place mattered”, said when announcing that it is moving its annual conference away from North Carolina:

We cannot ask members of the LGBT community to travel to a state where they do not feel safe or comfortable and may feel threatened.

There are hopeful signs that the pressure may force a repeal.

HB2 is prejudice enshrined in law. It denies both physical reality and human dignity. It hurts already-marginalised people in the name of protecting others, but there are better ways of properly balancing public safety with our most precious right of all – to be who we are.

Michael Bradley is the managing partner of Sydney law firm Marque Lawyers, and he writes a weekly column for The Drum. He tweets at @marquelawyers.