Arizona Legislator Shows His Ignorance – And a Lesson on Sex and Birth Certificates

I’m not writing about Autism today, but I am writing about discriminated against another group of people – trans* (I’m using this primarily to refer to transsexual people, but using “trans” instead because I believe this issues affect more than just transsexuals), intersexed, and people that might get mistaken for being the other sex (such as people like Khadijah Farmer who was thrown out of a restaurant bathroom that matched her sex, gender, and, presumably, chromosomes).

An Arizona legislator has entered a proposed amendment to a bill being heard by committee. The bill was originally written to establish regulations for massage therapy. The amendment would completely strike that language and replace it with nothing to do with massage. Instead, it would create a criminal penalty for using the wrong bathroom:

A PERSON COMMITS DISORDERLY CONDUCT IF THE PERSON INTENTIONALLY ENTERS A PUBLIC RESTROOM, BATHROOM, SHOWER, BATH, DRESSING ROOM OR LOCKER ROOM AND A SIGN INDICATES THAT THE ROOM IS FOR THE EXCLUSIVE USE OF PERSONS OF ONE SEX AND THE PERSON IS NOT LEGALLY CLASSIFIED ON THE PERSON’S BIRTH CERTIFICATE AS A MEMBER OF THAT SEX.

It does go on to grant some exceptions, such as allowing a small child of the opposite sex accompanied by a parent into a bathroom.

This type of thing is not unique to proposed laws in Arizona. It’s been tried elsewhere. For instance, the University of Pittsburgh expelled a student for using the “wrong” locker room on the basis that the student’s birth certificate presumably indicated a different gender than the sign on the bathroom door.

Bathroom and locker room usage is also a common objection by people generally opposed to LGBT non-discrimination laws, particularly when “T” is included in the law. In fact, it appears that the Arizona proposed amendment may be a response to the City of Phoenix passing a law banning discrimination against LGBT people. The argument is, essentially, that women and girls are placed at great risk if a man enters their bathroom, and that sexual predators will be granted freedom to molest girls because they’ll be able to pretend to be a woman and thus protected by the law. That’s bogus, and I’ll explain why later – but I’ll give a preview: it’s less to deal with protecting children than simply having moral disapproval for how someone else lives their life. But “I think they are sick” doesn’t track as well with the public as “children are at risk.”

So, here’s some education for future potential legislators seeking to ban trans people from public life. If you want to be a bigot, at least do it right.

Not Everyone Has Birth Certificates

An Arizona legislator should know this, since there is a way to apply for a “delayed birth certificate” in Arizona (like most, if not all, other states and foreign jurisdictions). A delayed birth certificate is issued when no birth certificate exists for a person who is older than one years old. That person could even be an adult that for whatever reason never had their birth recorded. They are still citizens of Arizona and the USA (assuming they were born in Arizona), but don’t have a certificate on file.

Under this proposed law, they could not use any public bathroom in Arizona that was signed for one or both sexes (they could enter unsigned bathrooms).

Not Every Birth Certificate Indicates Sex

Not all birth certificates indicate the sex of a person. I know a person who has the word “CHILD” under “sex” on the birth certificate. This person, and others like this person, could not enter any public bathroom in Arizona that was signed for one or both sexes (they could enter unsigned bathrooms). I guess they could enter a bathroom marked “CHILD” but that’s probably not the intent of the law!

I Can See Your…Birth Certificate?

This would seem to be obvious, but people generally don’t carry their birth certificate with them. A police officer arresting someone or charging someone on the basis of their presumed birth certificate, without any evidence as to what the certificate actually says, very well could be subject to a bias complaint – remember, sex discrimination is against federal law, and sex discrimination can occur when decisions are made because someone doesn’t fit the expected sex stereotype.

So a police officer confronted with a person who doesn’t look like a “proper” man or woman has a choice: she can either assume that the person has a birth certificate that matches her assumptions or not. But there’s not necessarily a direct connection. Remember, the law proposed doesn’t care about anatomy – it only cares about what is written on the paper.

Evidence also must be presented in court. Presumably, the prosecution would request the birth certificate from the state of birth and ask someone to testify as to its’ authenticity. But that seems a bit much for a misdemeanor. Without that, there is no evidence however, baring a person incriminating themself. It’s even more difficult if the state or foreign jurisdiction doesn’t see the request for birth certificate as a valid reason to produce the record.

Doesn’t Do What it Means to Do

The intent of the law is clear: establish law that doesn’t recognize legal sex changes. The assumption is that the birth certificate reflects the person’s “birth sex” (which is problematic in itself), while other ID, such as a driver’s license (which is often easier to change) might not. However, birth certificates don’t necessarily recognize birth sex, despite this legislator’s apparent beliefs.

In some cases, birth certificates are wrong. All it takes is a simple typo that goes unnoticed. That person, in Arizona, would be required to use a bathroom they don’t belong in.

In other cases, birth certificates are changed without surgery. I.E. the person may have a penis but be listed as “F” on their birth certificate. My guess is that the legislator intends that such a person wouldn’t be in the women’s locker room. However, this law would require that person to use the women’s locker room – exactly the opposite of the legislator’s intent. Ontario, Illinois, and federal (USA) jurisdiction (for births of USA citizens-by-birth abroad) are just a few jurisdictions that don’t require surgery to change birth certificates.

It also works the other way – someone can have genital surgery and have a birth certificate under their “old” gender. They may not have applied for a new one, or they may be in one of the few jurisdictions that won’t allow a birth certificate change (in the USA, only Idaho, Ohio, and Tennessee fit this category). So now you can have someone with the “wrong” parts legally required to use a bathroom that this legislator probably doesn’t think they belong in.

Far from preventing “men from being in the girl’s locker room”, this law would require that.

It Doesn’t Make People More Comfortable

One of the arguments – which is completely bogus – is that we have to think of everyone using a bathroom or locker room, and their comfort. Of course, usually the trans or intersexed person’s comfort isn’t a major consideration.

But, tell me, would most women feel comfortable changing in front of Ian Harvie? Now, I have no idea what sex is listed on Ian’s birth certificate, but I doubt anyone worried about men in the women’s room would want someone like Ian in the women’s room!

It Promotes Discrimination

Many people who are transitioning pick a bathroom based on safety and discrimination concerns. Sometimes it may be safer to use the men’s room, other times the women’s room. Using the bathroom of the target gender confirms to people that you “really are” what you present as, particularly if it’s not completely unambiguous. Being outed as trans, by using an inappropriate bathroom, can expose someone to anti-trans violence. While we should live in a world where someone should be able to safely be trans anywhere, we don’t. So we have to think of the safety of the people most likely to be hurt. Ultimately, it isn’t my place to tell someone else what bathroom they should use when their personal safety is at stake. (note that it is NEVER the trans-person’s ‘fault’ if they are attacked for simply being trans, regardless of what bathroom they use)

We Already Have Laws to Protect Girls

Despite that plenty of boys are abused in bathrooms, the discussion on these laws usually deals with the perceived risk to girls (apparently, boys can’t be molested in some people’s eyes).

In Boulder, CO, a man was recently charged with watching others use the bathroom. It’s become a bit of a circus, but clearly there are still laws violated when people breach the privacy of a bathroom or locker room, even in places where there are strong anti-discrimination laws, like Boulder, CO (which has some of the strongest in the country).

We have laws to protect people from inappropriate behavior in bathrooms and locker rooms. I don’t care what is between your legs if you are trying to molest someone. Fortunately the law doesn’t, either. Nor do I care what parts you have (or certainly not what is on your birth certificate) if you are sexually harassing people or violating their privacy – I also don’t care if you are straight or gay, or doing it to someone of the same or opposite sex. It’s wrong and illegal. Already.

In addition, in no jurisdiction where there is good non-discrimination law has that law been successfully used as a defense by someone using the bathroom to molest or invade the privacy of others.

Not Every Man Has a Penis

While I think the proposed law would be more likely to match the intent of the legislator if he wrote “people with penises must not use the women’s room,” it still would be a bad law (it is interesting however that the people most concerned with whether or not someone else has a penis are the same people who refuse to use the word “penis”). Besides transmen that may or may not have a penis, people can have unusual genitals for all sorts of reasons, such as accidents, medical errors/malpractice, or biological conditions.

Solutions

Clearly, some people are uncomfortable with the idea of transsexuals and others they don’t approve of in the bathroom.

The solution is simple: they shouldn’t use multi-occupancy bathrooms, locker-rooms, etc. Just as someone who is uncomfortable in the presence of blacks should not use public accommodations, if they want to be comfortable. It’s not any more right to ban transsexual and other people from public spaces than to ban blacks from public spaces, even if people are sincerely uncomfortable. There are plenty of sincere racists.

It’s not the victim of discrimination’s fault that a bigot is uncomfortable. The problem is the bigot, not the victim. So the burden should be placed squarely on the bigot when deciding who doesn’t need to fully participate in society.

For people concerned about minimizing discomfort (and increasing safety) to all people, it’s best to have spaces where people can disrobe or use the bathroom in true privacy. We don’t have to build open showers and changing areas. Really. Single-stall/shower facilities are a great solution. That said, nobody should be forced into such facilities while others use other facilities, but at the same time such facilities provide a place for people who desire greater privacy, such as people who might be offended by the presence of a trans person.

If people really cared about their fellow citizens, this would be the demand: private changing areas and bathrooms. Seriously. I’m not any more comfortable with a creepy man staring at my parts than a creepy woman staring at my parts!

Much of the debate comes down to: is a trans person “really” the gender they claim to be, or should they be forced to be what someone else thinks they should be? Beyond the sad case of David Reimer, modern science has certainty here – they are who they say they are. Yes, they (pdf) are. Don’t worry, nobody will make you change your gender against your will. So please don’t you try to do that to anyone by punishing them if they live authentically.

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