Birth certificates and bathrooms in Arizona

Arizona state Rep. John Kavanagh has introduced a bill that would make it illegal for transgendered persons to enter what he, John Kavanagh, consider’s to be the “wrong” public restroom.

Brahm Resnik nicely summarizes the proposal in the title of a recent column, “‘Show me your papers’ — before you pee.” The bill would add the following to the state’s definition of “disorderly conduct”:

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.

So Kavanagh’s bill specifically targets one minority group — transgendered people — for legal harassment. That’s unfair and unjust, but let’s bracket those very important matters of fairness and justice for the moment and just consider what it would take to enforce a law like this.

Resnik worries that this bill would, in effect, require all transgendered persons in Arizona to carry their birth certificate with them at all times. But it wouldn’t do that.

It would, instead, require everyone to carry their birth certificate with them at all times.

Including good, straight, white, Christian citizens of Arizona — the sort of people Kavanagh had no intention of harassing with this legislation. His bill is intended to exclude certain people from public accommodations — people he doesn’t particularly care about burdening. But the only way to do that is to require everyone to be able to prove that they’re not one of the people he’s targeting. Kavanagh only intends for his bill to affect the lives of transgendered Arizonans, but in practice it would mean that every person in Arizona would be required to be able to demonstrate that the gender “legally classified on that person’s birth certificate” met the standards of his proposed law.

Kavanagh simply hasn’t thought this through. His motive for this proposal — fear of the other — is similar to the motive behind many Jim Crow laws and other race-based forms of legal discrimination, so Kavanagh turns to them as models for his bill. It’s the same basic approach his party has taken in Arizona to the legal harassment of Latino and Hispanic people — legislating the presumption of illegitimacy for anyone who appears not to conform to his preferred norm and requiring such citizens to provide constant, elaborate documentation of their claim to equality under the law.

But this “Papers, please” model of race-based legal discrimination doesn’t work for legal discrimination based on sexuality, because sexuality isn’t always visually obvious. When you’re trying to enforce a form of legal discrimination based on traits that are not visually obvious things get much more complicated.

Think of the routine police harassment of black motorists sardonically referred to as “DWB,” or driving while black. That’s a relatively simple form of legal discrimination because it’s based on a visually apparent distinction. A Radnor cop sits in his cruiser alongside Lancaster Ave. — the main artery of Philadelphia’s “Main Line” suburbs — and he peers through the windshield of every passing car until he sees a black driver he can pull over for, say, driving 27 in a 25 mph zone. (To be fair, Radnor police don’t exclusively pull over black motorists — they also occasionally pull over white Villanova students.)

But such selective legal harassment of a particular population is a much trickier business when that population is not visually distinct. I took the picture below in Jerusalem in 1990.

 It’s not easy to peek through a windshield to determine whether the driver of a car is Israeli or Palestinian — the difference is not visually obvious. So to allow a simpler visual distinction, Israel uses color-coded license plates. I’m not sure what the code is today, but in 1990 it was yellow plates for Israeli drivers and blue plates for Palestinian drivers. Thus the only way for Palestinians to get around easily without being repeatedly pulled over, pulled aside, and required to produce documentation was to get a car with yellow plates.

In 1990, though, the West Bank was going through a wave of Intifada protests, which included a lot of stone-throwing. If a blue license plate made your car a target for harassment from the police and the IDF, then a yellow license plate made it a target for stone-throwing Palestinian protesters.

The rough solution, then, was to drive a car with yellow plates, but to display a keffiyeh head scarf on the dashboard. That signaled “Yes, I have yellow plates, but please don’t throw stones, I’m one of you.” The police and the IDF knew about this signal too, of course, and if they saw the keffiyeh on the dash, they’d respond just as though the car had blue plates. And Israeli drivers also learned the keffiyeh trick, which they’d use as a way to avoid becoming a target for stones.

This technique required some agility involving the quick removal or replacement of the scarf, depending on where one was driving. Too quick or too slow and you could end up either detained at a checkpoint or paying for a broken windshield — as in the photo. (I have no idea if that car belonged to a Palestinian driver using Israeli plates or to an Israeli driver using a Palestinian keffiyeh.)

The point here being that legal discrimination gets really complicated when it’s premised on traits that do not involve visually apparent distinctions. Without a simple visual distinction, any attempt to harass one visually indistinct group will wind up making life miserable for everyone from every group.

And just as an IDF officer or Intifada protester can’t simply glance through a windshield and be certain if they’re seeing an Israeli or a Palestinian, so too no Arizona official can simply glance at a person using a public restroom and be certain if they’re seeing a transgendered person.

Please don’t misunderstand me — I’m not in any way saying that legal discrimination or legal harassment based on visually obvious distinctions is in any way right or good or acceptable. I’m only saying it’s logistically more simple.

I appreciate that people like Rep. Kavanagh want to subject sexual minorities to the same kinds of harassment and discrimination they apply to racial and ethnic minorities. But things like “DWB” or Arizona’s anti-immigrant laws don’t provide a useful model for discrimination against sexual minorities who may not obviously look like sexual minorities. And when the minority group you’re targeting for harassment often looks just like everyone else, then you can’t impose a “papers please” law on them without imposing it on everyone else too.


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  • This was the first thing I thought of when I heard of this bill. Especially as it comes from the state of Sheriff Joe “My posse of sex offenders has turned up shocking evidence that the president is a secret Kenyan” Arpaio and Governor Jan “I was only shouting and wagging my finger at the leader of the free world because he was a scary black man” Brewer.

  • The inside of the door to the men’s room in the Ocean City MD Ripley’s Believe-it-or-not museum has a sign on it that says “Thank for for visiting the ladies’ room”

  • BaseDeltaZero

    TW: Rape

    I believe I’ve heard concerns brought up of sexual assault/harassment taking place in the bathroom, which are relatively isolated. Of course, this happens with male/female toilets anyways, so…

    In less disturbing news, I once had a scoutmaster who insistently referred to male/female divided toilets as ‘unisex’, under the logic that they were each designated for one sex. He did a lot of other weird things too, but that’s the relevant story…

  • BaseDeltaZero

    Well. That was random.

  • The_L1985

    I went to a restaurant once that had a single-occupancy bathroom. It was unisex. First time I, as a ciswoman, ever tried to go to the bathroom while staring down a urinal.

  • Jenny Islander

    Two things come to mind:

    1. Guy pee stinks. I have trouble using heavily trafficked unisex bathrooms because the lingering tomcat smell from the male patrons makes me ill.

    2. There is a thing about men being manly by nonchalantly shaking it off and walking out. Leaving those of us who have to drop our pants to pee trying to keep them out of the sticky stains on the floor. Seriously, I had some conservative Christian guy tell me with a straight face that it was my problem for being too dainty to come into contact with “sterile” urine. I say that I handle my children’s piddle as a matter of course, but grown men can clean up after their own selves! Except they don’t.

  • Jenny Islander

    ETA to no. 1: Maybe I wouldn’t notice if I had grown up with all-unisex toilets, or maybe it’s something in American food, but in any case the smell is awful.

  • Jenny Islander

    Trying to avoid TMI here–assorted medical issues require me to use only hypoallergenic cotton menstrual pads each month. These are very bulky items. I try to wear loose, concealing clothing if I have to take my coat off outside the house during that time, but sometimes I just can’t get to that pile of laundry due to the usual Mom chaos, so I have to walk around with a visible “package.” So far nobody has commented to my face. But if I’m reading this law correctly, I could be subjected to a legally permitted public hazing in Arizona because I have medical issues that are nobody’s damn business!

  • P J Evans

    They closed the restrooms at my local trains station, because some of the users made messes, mostly by filling the little trash container with the paper seatcovers. The PTB blame it on the bus riders, but it happens in midday, when there are far fewer bus riders. It’s inconvenient as hell if you’re having to wait for a train that’s fifteen or twenty minutes late.

  • LMM22


    More importantly — even if sexual assault isn’t an issue, hidden cameras still would be. Everyone has a cell phone these days, and it’d be really difficult to do *anything* about the guy in the next stall. (At least with single-sex bathrooms, one could complain that, hey, there’s a guy in the bathroom! With unisex bathrooms, you’d have to catch him in the act.) This is *especially* true in high school or middle school contexts — I could easily see girls getting blackmailed or mocked because of footage taken in women’s restrooms.

    Also, to the extent that it’s possible without violating people’s rights, I *do* think that we should be aware of people’s boundaries and discomfort levels — particularly when they vary culturally. Technically, we don’t even need stalls — or enclosed toilets! — but we have them because few people feel comfortable without them. (I had two close female Muslim friends in grad school. Both were relatively liberal, particularly for first-generation immigrants, but neither would swim in a mixed-sex environment. One of them lived in Saudia Arabia for awhile as a teen — she had little good to say about it, but she did miss the segregated swimming pools. I’m not sure how they would deal with unisex bathrooms, but I doubt they’d be happy.)

  • I wonder if stalls could be made with sliding or rolling doors or something. Perhaps the door could be made in sections that curve and recess into the wall of the stall and then be pulled out when needed. Then it wouldn’t hit anyone when it opens up.

    I must remember to mention this to my future-inventor son when I get home from work tonight.

  • I just want to make sure I understood you: on your account, with single-sex bathrooms, if a guy is in a stall adjacent to a woman and takes pictures with his cellphone, the woman has recourse, since he wasn’t supposed to be in the room at all. (If a woman is in a stall adjacent to a woman and takes pictures with her cellphone, the woman has no recourse, but we’re not worried about that.) But with mixed-sex bathrooms, the woman would have no recourse even if her photographer was male, because there’s no practical way we can address men taking abusive photos once we let them into the room at all.


  • The_L1985

    So, hiring a janitor wasn’t an option?

  • LMM22

    Adolescent culture being as such, it’s quite likely teenage boys would take photos of girls. Women are *far* less likely to be cultured to do so. It’s quite easy to throw someone out beforehand. It’s much harder to do so after the fact.

    Basically, we live in a culture where grown men fondle women on subways. We live in a culture where grown men take pictures up women’s skirts. Until you address this, count me out of your utopian unisex restrooms.

  • Lectorel

    That reminds me of a story from a trip to San Francisco. There was this new restaurant, completely redone on the inside, everything in white with gold accents, and these little separate, open air stations where you could see food being cooked. It was gorgeous and obviously thought out to the last detail.

    When I went to the women’s bathroom, the same white and gold theme was there too, sinks, floors, and stalls.
    And in every stall, there was a little grey metal trashcan wedged awkwardly in the corner for used pads and tampons. The designer had forgotten or never considered women might need some way to dispose of those in-stall.

  • Carstonio

    I’ve seen unisex washrooms in other countries. I’m old enough to remember the accusations that the Equal Rights Amendment would result in these coming to the US. Offhand I don’t know if any rational argument against them.

  • DavidCheatham

    How about we just make bathrooms where you can’t see into the stalls?

    Seriously, this has always seemed like a saner solution to start with. Extend the walls to the ceiling and floor.

    And before people ask if this would cost more money…what, more money than two entirely separately rooms? Because one real wall is almost certainly more expensive than extending every flimsy plastic wall a few feet up and down, and that’s assuming you make the combined restroom the same size. (When in reality you can now make it smaller.)

    Oh, and fun fact: Now you can put _cameras_ in there. Just, you know, not in the stalls.

  • Well, I’m all for addressing that sort of abusive behavior.

    How about: prosecute men who inappropriately touch women or take inappropriate pictures of women, whether they are in a single-sex bathroom, a multi-sex bathroom, or not in a bathroom at all?

    Even better, how about: prosecute people who inappropriately touch or take inappropriate pictures of other people, whether inside or outside a bathroom?

  • DavidCheatham

    (Please, for the purpose of this post, understand I’m speaking about the opinion _those_ men, not me.)

    The best rule of thumb is, every time anyone hears anything about opposition to homosexuality, they should mentally edit that to mean ‘abnormal gender roles’. It has almost nothing to do with sexuality. Psychologically, these people have a very hard time dealing with any sort of gender ‘abnormality’ at all.

    There’s this idea that anti-gay people on the right keep getting caught being gay, and that makes them hypocrites. Well, a lot of them are actually not. Why? Because they’re in the _male role_ in the relationship. The person giving them a blow job is the weird one, not them.

    In fact, they often manage to deal better with women in a ‘male’ role than men in a ‘female’ role…they can understand why women would want to better themselves, and if 10% of women want to pretend to be ‘men’ and get a wife and dress like men, well, that just _validates_ their world view. They don’t really believe she’s ‘people’, but they aren’t _freaked out_ by it.

    But men who _willingly_ become metaphorical women by letting men have sex with them? Or even worse, _actually_ become women?

    Why would anyone who was born with a penis, and hence inherently better than people who were not, degrade themselves like that?

    It all comes down to misogyny. _All_ of it. Women exist for men to use, and hence men deciding to be used that is like…I dunno…someone choosing to live as a someone’s dog. Whereas women choosing to live as a man are, instead, a dog that put on pants and pretends to be people, which is just somewhat silly, but, hey, if they’re polite enough and remember not to crap on the floor, the real people (men) can go along with it. And even let those dogs have _their own_ pets.

  • It seems to me that if the justification for segregated restrooms is “to protect women from men who might illicitly photograph them there”, you need to have an answer for “why don’t we care about women who might illicitly photograph them there?” Because if we have some way to solve that second problem, then that same method can be used to solve the first problem, and we don’t need sex-segregated bathrooms for that reason.

    If on the other hand, it’s “Sure it might happen, but it’s so rare that I don’t care about doing anything about it,” well, that’s an argument that has a rather unfortunate history when it comes to how we police gender.

    (And that’s leaving aside for the moment the fact that you can essentially ruin someone’s life by releasing a covertly taken photograph of them in a state of undress. I’m hoping really hard that within my lifetime, it’ll stop being feasible for society to discard people for having been photographed in a state of partial dress. Though right now society seems to be interested in finding new ways to discard people rather than getting rid of the ones we have)

  • Obviously, as a man I’m not qualified, but whenever I go out in a mixed group, the women tend to be the ones complaining about the state of their restrooms. Often in graphic, horrible detail.

    There’s apparently this “hovering” thing which some women do which not all of the women who do are good at?

  • Guy pee stinks.

    Fecal matter smells quite wretched, regardless of the owner… and frequently used, poorly ventilated bathrooms present this offense more often than not.

    Nevertheless, folks seem to manage.

  • Also, coffee pee and asparagus pee… Yish.

  • Makabit

    I’ve always used the single-person men’s room if it comes available, and I see no reason a man shouldn’t use the women’s. What on earth is the point of gender-separated restrooms if NO ONE ELSE IS IN THERE?

  • Makabit

    Urine that has come out of your body, and is on the floor, is no longer sterile. Urine doesn’t have some inherent QUALITY of being sterile, it just is when it’s in the bladder.

  • Makabit

    But apparently he might actually be a scary black woman?

  • Makabit

    I’m a ciswoman, and I’ve shared a ladies’ room with transwomen. It has never, ever, been an issue.

    I tried to remember when I last heard a story, in the news or from someone I know, of a ciswoman being raped/harassed/slightly inconvenienced by a transwoman in the ladies’ room.

    I recalled a story about a woman who had the crap beat out of her by two girls in a fast-food restroom…but she was trans, and they were cis.

    I think all the ladies should use the ladies’ room. It’s tidier that way.

  • I am 100% positive that he *intends* to target people who don’t look just like everyone else, that he’s someone who believes most trans* people are obvious. That said, I think it’s hilarious that someone who’s claimed transpeople who don’t pass successfully (not that they should have to) will “confuse children” by using the “wrong” restroom, will himself confuse a fucktonne of children when people who look their gender but not their (birth certificate) sex use the “right” restroom out of fear of getting caught.