Gender Is Not A Crime

Thanks to Wikimedia for the image.

As I discussed in my blog post about how better knowledge of bodies makes for better public policy, bathroom access is a public health issue that disproportionately affects women, transgender people, and other people on who are agender or non-binary.

This is one reason why I’m incensed about Indiana’s Senate Bill 35, which makes ” it a Class A misdemeanor if: (1) a male knowingly or intentionally enters a single sex public facility that is designed to be used by females; or (2) a female knowingly or intentionally enters a single sex public facility that is designed to be used by males.”

As Think Progress clarifies on their post about the bill, a Class A misdemeanor means that you can be punished by spending up to one year in jail with a fine of up to $5,000.

…all for using the bathroom? This is clearly ridiculous.

The remainder of this blog post will be a letter that I am sending to my state representative about this issue. I welcome other Indiana residents to copy and paste any of the bullet points below in their own emails, or to cite information found here, or otherwise use this blog post to inform your own messages to your representatives. If you quote me please give credit, but honestly I just want to see more people protesting this obnoxious bill, and if a quick copy-paste job is what gets people to write in, then do it and don’t worry about crediting me.

Dear state representatives,

I’m writing to urge you to vote against Senate Bill 35.

Mandating bathroom usage by gender disadvantages and discriminates against the following groups:

  • Parents who must escort a child into a bathroom, especially when the child’s sex or gender does not match that of the parent’s, or does not appear to match
  • Children who must escort a parent into a bathroom, especially when their sex/gender does not appear to match
  • Other family members or professional caretakers who must escort a sick or differently abled (whether physically or mentally) person into a restroom
  • Women who are ill, pregnant, or for whatever other reason urgently need to use a restroom when there is only a men’s restroom nearby
  • Men who are sick or for whatever other reason urgently need to use a restroom when there is only a women’s restroom nearby
  • Transgender people whose official ID does not match their gender identity
  • People who do not visually conform to a given gender

This bill is based on the following faulty premises:

  • That gender identity, gender expression, and biological sex all neatly line up, which multiple academic researchers have proven to not be the case
  • That other people can and should become authorities of the gender of people they don’t even know (because who else is going to call law enforcement on folks using the bathroom?)
  • That sexual assault already being illegal is not enough of a deterrent to keep it from happening inside public bathrooms (sadly, it does happen sometimes, as in this story from earlier in 2015, but as the perpetrator was hiding inside a stall, it seems unlikely that he would’ve peacefully left if someone had initiated a conversation about gender with him)
  • That people whose gender expression doesn’t match their assigned-at-birth-gender are likely to be troublemakers and/or perpetrators of assault, sexual or not, when in reality, transgender people are far more likely to be victimized than to be the ones visiting violence against others (the Office for Victims of Crime estimates that one in every two transgender people will experience sexual assault and/or physical violence in their lifetime)

Let me strongly restate this last point: there are no cases of transgender people committing assaults in bathrooms. There are no reported cases of this happening in the U.S. None. I would think that government legislation should address existing problems, not imaginary ones, yes?

To briefly dwell on another of the above points, it is senseless to make every citizen into the gender police. Trust me, I study gender professionally, and gender is complicated enough merely on the level of how you perceive yourself, express your gender identity, and struggle with conforming to gender norms! Trying to gauge how someone else perceives you on top of all of that is endlessly complicated, and whether one person successfully passes or presents as a given gender should not be dependent on someone else’s snap evaluation of them.

Speaking of passing, as this excellent round-up on gendered bathroom issues reminds us, bathroom rights ARE civil rights: it wasn’t that long ago that some public restrooms were marked with “whites only signs.” Further, bathroom policies can have concrete effects on transgender people, which is no surprise, as social groups suffering the effects of stigma often experience other negative impacts to their physical health and mental health. While this law is impractical to enforce and very silly in my eyes, it could also do significant damage to people who are apprehended under it. I for one do not want to see anyone have to deal with the police, or worse, go to jail or face fines, simply because they had to use a public restroom.

I’m also displeased about how the senator who proposed this bill, Jim Tomes, claims to be against big government… but what, exactly, is this bill about, if not the government taking an unseemly interest in who uses which bathrooms? This Mother Jones article names a conservative legal advocacy group that contacts schools and lawmakers across the country to promote their policy (which is against letting transgender students use the bathroom that corresponds to their gender identity), and I can’t help but wonder this group or one like it had a hand in shaping local policy according to their goals, regardless of the needs of the local folks. In my decade-plus spent in Indiana, I’ve met a lot of very tolerant open-minded people, and a lot of people who claim to be in favor of smaller government, so I have to wonder who, exactly, this bill serves.

Even considering this bill makes it look like Indiana’s legislators care more about reinforcing arbitrary definitions of gender and waging a larger-than-local ideological war than the following problems citizens of this state face:

It’s even more ludicrous to waste time and money on this bathroom bill in light of Indiana’s sexual assault rates as stated above, because the same conservative politicians trying to pass SB 35 are also responsible for laws contributing to the lack of comprehensive sex education and assault information central databases that contribute to the state’s alarmingly high assault rates. Tangentially related, but worth mentioning, is how domestic violence survivors in Indiana are needing more and more help, but are unable to get it. And disturbingly, child abuse in Indiana was on the rise in 2015 … abuse which was perpetrated by caregivers and those close to children, NOT strangers they might encounter in a bathroom.

Indiana has plenty of problems with sexual assault and child abuse, but these problems require quite a different approach than an impractical law policing gender in public restrooms. I would urge the lawmakers considering this law to closely examine the other policies in place that are creating the conditions under which sexual assault and child abuse proliferate, such as poverty, lack of education (general education and sex education), and underreporting.

In sum, trying to legislate the gender of bathroom-users is absurd. This Huffington Post blog has an excellent series of protest photos that a transman took, demonstrating that he clearly does not belong in a women’s bathroom, regardless of his assigned-at-birth gender. The blog post also, significantly, shows how similar bills have fared in other states, demonstrating clearly links between the rhetoric of those conservative groups trying to pass them. In the end, I have to wonder whether the conservative groups claiming to be in favor of small government are actually walking the walk, or whether they are, as Al Jazeera suggests, swept up in a nationwide backlash against transgender people gaining access to equal rights.

Do we want Indiana to be part of a shift that makes citizens into the gender police, invites the governments into bathrooms, and diverts attention from other more pressing issues that Hoosiers face? I remember how the RFRA rhetoric was starting to go, and it was nasty and bigoted. Or do we want to firmly make a statement of non-discrimination, based on empirical research about gender and culture, not giving in to fear but rather promoting evidence-based policies and tolerance? I know which side I stand on, and I entreat others to join me.


Dr. Jeana Jorgensen

Adjunct Professor, Butler University

PhD, Indiana University

MA, Indiana University

BA, University of California, Berkeley

Professional Member: American Association of Sexuality Educators, Counselors, and Therapists

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