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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  • SisterCoyote

    I’m cisgendered female, and I get called “Sir” or “Young man” or otherwise misgendered almost every day. I used to joke about flashing people who told me I was in the wrong bathroom, and it was only a few years ago that I started wondering what would happen if I couldn’t do that – if there was no way to prove to bigoted assholes people that I was who I said I was.

    I’m still pretty sure the simplest solution is for people to stop arguing about the gender of people who they do not share a body with. This is the most horrifically fucked up bill I’ve seen in a while, even worse than Arizona’s usual standards.

  • Katie

    And once again, women are being punished because of the fear that men might misbehave.
    I’d also note that there isn’t an age limit on this law, and as a woman who has sons, I can say from experience that (some) women start being uncomfortable about boys being in the women’s bathroom when the boys are, oh, about five. So not only is this a law that will hurt transgendered people, it can also be used to harass parents who might need to take their opposite sex child to the bathroom.
    Not to mention the absurdity of a law that seeks to keep men out of the women’s bathroom, by…legally requiring some men to use the women’s bathroom.

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

    Equal protection’s a dick, ain’t it?

    I mean, if your goal is legally enshrined discrimination.

  • Slightly beside the point – but, despite having grown up in a country with male/female toilets, I don’t really see the need. Why can’t we just have unisex toilets everywhere? It’s not like having sanitary bins in the loos is really going to inconvenience the men. And while it would be creepy and inappropriate if a woman came over and started staring at men using the urinals, it’d also be creepy and inappropriate if a man started staring at the men using the urinals – so what’s the big deal?

  • I did not know that the facilities in a private club, a country club, would could be considered public? Have the walls and barriers of white America shrunk right up unto the very stall door?

  • Lori

    Lovely. Nothing like have a full on white supremacist stop by for a visit.

  • AnonaMiss

    I see what you did there.

  • And I am double parked in a rather seedy part of town to join y’all at that. lol

  • Lori

    Feel free to unpark your ass and head on back to Klan town.

  • aunursa

    Many restaurants and public facilities (e.g. BART rapid transit stations) have two single-person restrooms: a Men’s room and a Women’s room. In such facilities, wouldn’t it make more sense to have such restrooms for use by either/any gender? Why should a woman have to wait for another woman to finish her business if the designated Men’s room is unoccupied… and vice-versa? Single-person restrooms should not have gender use limitations.

  • When I was a teenager, I once spent the weekend sleeping in the church hall with 40 other Girls Brigade girls. And despite the fact that there were 40 girls and no boys present, everyone still kept queuing up to use the ladies toilets. (Except for two of us, who rebelled, used the mens, and got to pee way faster than everyone else.)

  • Whatever. Bye.

  • Former law prof

    Fred, I agree with your sentiments entirely, but you overstate your case. The bit about birth certificates is in the law as a way of defining gender. NOTE, I AM NOT DEFENDING THE LAW, WHICH IS STUPID. What I am doing is looking at it as a lawyer would, which is often quite different from the way these types of things get stated in arguments. The reality is that looking like a male (or female) is not a reason for police to detain you if looking like a male (or female) is appropriate for the circumstances. The people this law targets are OUT transgendered folks — known to be transgendered by someone willing to call the cops.

    Its odd side effect is that it would also target transgendered people attempting (however unhappily) to comply with it. Imagine the response if someone who looks male (but is female by birth) goes into the women’s room because the law requires it. Ironically, what people would wind up having to do is to prove that they’re transgendered, since otherwise the law is an invitation to peeping toms to claim they’re transgendered.

    The Jerusalem stuff is fascinating, btw. All I’m saying here is that the concept of probable cause intervenes here to make your assessment of the Arizona law unlikely.

  • Oh, is that what he’s talking about? The “country club” thing was confusing me…

  • Country clubs are one of the last places where open racism is still considered socially acceptable. The words “country club” and “white America” are pretty synonymous with “our fortress of solitude against the inferior races infringing on our right to be assholes.”

  • Lori

    Yup, that’s what he was talking about. Folks who are not flaming racists don’t waste a lot of concern on the sanctity of country club toilets.

  • Katie

    Except that being a peeping tom is already illegal.

  • de_la_Nae

    Businesses are pseudo-people, populated by people. People are not allowed to do certain behaviors outside of their most personal holdings (and sometimes even then, i.e. murder) because they have been found to be systemically abusive to humanity, society, and other people.

    Businesses, (usually) being at most pseudo-people (and of course staffed and maintained by actual people who are still under certain rules) have slightly different leeway with the rules. Because essentially they must be able to deal with their employees in a non-systemically abusive manner, and in cases of businesses whose entire means of living require personal interaction with people (i.e. The Public), they are not allowed to be systemically abusive either.

    The debate on where the lines are and should be drawn are constant, but that’s the general idea. The law usually is supposed to boil down to “don’t be a dick, love your neighbor”. Oh hey, where have we seen that phrase before? :3

  • aunursa

    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.

    According to Wikipedia, certain number suffixes are now reserved for Palestinian plates. (Note that Israeli plates are issued to all Israeli citizens — Jews, Muslims, and Christians.)

  • de_la_Nae

    Some days I wish I was a business owner in Arizona, just so if this law was passed I could waste everyone’s time and money calling the cops on anyone who tried to use my bathrooms.

    I, uh, probably shouldn’t be a business owner. Something tells me it would die quickly.

  • Actually, the bill exempts parents of small children, as well as janitorial staff and the physically disabled.

    One other interesting bit from the actual bill: It’s an addendum to the disorderly conduct statue, with the new part under a new subsection. The original statute required “intent to disturb the peace or quiet of a neighborhood, family or person,” while the new subsection lacks that phrase.

  • … as if they didn’t care whether the intent was to cause a disturbance or not. That is interesting, and perhaps rather telling.

  • I don’t believe for a second that this bill – if it became a law – would ever be enforced. That’s not the intent. The intent is to make a point, for social cons to draw a line in the sand in their conflict against those people.

  • Don’t have a clue about what your pile of words mean?

  • I have lived in Arizona and there are two classes of people, the rich and the super rich. For some dude from the Mormon dominated legislature is trying to post some new exclusionary law, it must be for the benefit of the two classes or their private enclaves. If Country Club is some coded word here that gets me banned, so be it. Have a nice life.

  • It also makes it easier to get the “wrong sort” ejected if they’re “bothering” you by existing.

  • I think not enforced at the state level (i.e., there wouldn’t be police officers routinely checking bathrooms for people who looked like they didn’t belong there), but I have no doubt that the intent is to give a tool to specific people to address something they don’t like, just like the nipple felony law is probably aimed directly at the Go Topless protestors.

    These days, it’s sadly pretty common for legislators to take aim directly at a local issue with a state law.

  • I’m on vacation using the lodge’s wifi which is spotty at best. I actually wanted to make a post on this subject at my place but, while I can log in I can’t actually do anything over there at the moment.

    If the law passed, which I hope it doesn’t, it seems like a viable protest strategy would be civil obedience. Organize a group to be present at a restroom, say whichever one Arizona legislators use, and demand to see the birth certificate before anyone gets in. If they don’t comply call security (the state legislature’s place must have security) to have them detained on the suspicion that the person is using a restroom that doesn’t match the gender on their birth certificate.

    See how long of enforcing the law equally for everyone in a place where the legislators want to use the restroom it takes before they decide to repeal the law. It’s not civil disobedience because it’s obeying the law.

  • Guest

    What’s stopping you from hanging around any public restroom and calling the cops on everyone who tries using the bathroom? The state Capitol restrooms, maybe.

  • Lori

    You haven’t been banned and you’re not going to be unless you do something a lot worse than talk like a racist. Don’t try to make out like you’re being victimized.

  • That was actually an accident. I got so caught up in the question of whether or not I’d catch hell for saying “Equal protection’s a bitch” that I didn’t notice the opportunity that had presented itself.

    But anyway, “Equal protection requires…” is kind of a dodgy idea when selective enforcement is kinda the whole point of a law like this.

  • It wouldn’t be enforced by policemen in rest rooms, but it would certainly be enforced as a way apply the force of law selectively when a panicky cisperson was spooked by a suspected* transperson.

    (* I say “suspected” because I think that this law would be used not just against actual transpeople, but also to harass cis people who weren’t performing their gender in the complainant’s preferred way)

  • mcc

    There was actually a news article just the other day about a cisgender woman getting kicked out of a place of business because someone accused her of being a “man in the bathroom”. (Can’t seem to find that article now!) The scary endgame of this law would be basically mandatory stereotypical gender presentation in Arizona if you don’t want to be asked to present your papers.

  • gpike

    The concept of policing restrooms is fairly bothersome to me since I’m nonbinary-identified and have a regular problem with older ladies freaking out when they encounter me in a women’s restroom even though I don’t remotely “pass” as male… *sigh*

  • I know exactly how you feel. I’m genderfluid in a way I can’t even articulate, meaning what I identify with not only changes, but sometimes it feels like I’m trying to plot X,Y coordinates on an X,Y,Z,Q plane.

  • mcc

    “The bit about birth certificates is in the law as a way of defining gender”

    Highly problematic way of defining gender though. It’s changeable, but it’s difficult to change and inconsistent whether it can be changed. I’m working on getting my gender change processed by the state of California. However, when that happens, to my knowledge I will not get a new birth certificate; I will get a California court order declaring me female. I can’t get a new birth certificate because my birth certificate was issued by Texas, and they won’t accept my gender change. But this Arizona law specifically says birth certificate! So I’d be in the unusual situation of being legally female in the eyes of Arizona law, but it would be illegal for me to use a womens’ restroom. What? If you peg the law’s definition of gender to birth certificates, what you really mean is– depending on the state the person was born in!– “this person is cisgender” “this person is cisgender or is transgender and has had surgery” or “this person is cisgender or transgender and has received some sort of medical treatment” (where “medical treatment” could mean psychiatric counseling). In other words it would tell us very little.

    “Ironically, what people would wind up having to do is to prove that they’re transgendered, since otherwise the law is an invitation to peeping toms to claim they’re transgendered.”

    Okay, so granting yes you have an interesting point that this would create weird legal problems for trans people who attempt to follow it, but



    I hate this argument SO MUCH. I usually hear it in the context of saying trans people *shouldn’t* be allowed into restrooms, it makes even less sense here. Remember in the absence of this law, trans people don’t magically get access to restrooms; business owners may exclude trans people under current AZ law.

    That aside, where’s this “peeping toms in bathrooms” problem that we keep hearing about? It doesn’t seem to exist outside of discussions of transgenderism and nothing about it seems to make sense. If bathroom voyeurs exist, why do we only worry about heterosexual ones? Why can’t we deal with them using existing laws against voyeurism? Why once caught would a bathroom voyeur try to pass themselves off as transgender (an incredibly societally disfavored minority), thus making them not ONLY a caught voyeur but also subject to transphobia? Certainly a cisgender person wouldn’t get very far pretending to be trans in court even if there were a reason to do so.

  • mcc

    You know, I wonder, if the Arizona law passes (I don’t feel it’s likely), I wonder if it would have the accidental effect of promoting gender-neutral restrooms because that would be the only way for businesses to accommodate transgender customers without either somebody breaking a law or a scene being caused (the bill says I should be using the men’s room, but I assure you, if I went in the men’s room people would FREAK OUT).

  • gpike

    I was thinking of that too – more gender-neutral restrooms would be great – but geeze why can’t we just have that IN GENERAL rather than people discriminating blatantly against folks that ARE actually men or women… >_>

  • gpike

    Yeah! It’s awkward when one is simultaneously “invisible” but can’t help rocking the boat in public spaces just by existing…

  • gpike

    Yeah! It’s awkward when one is simultaneously “invisible” but can’t help rocking the boat in public spaces just by existing…

  • There are reasonable arguments to be made about the value of having female-only spaces to which women can retreat when under threat or duress. Though there’s no per-se reason that bathrooms have to be it.

  • I would want to follow that senator around and ask for his birth certificate before he entered any public restroom, actually. Say have a rotating team of people so as to avoid stalking charges.

  • Carstonio

    I admit that I had assumed that transgender and transsexual were the same thing. That doesn’t change my opinion of Kavanagh, who is lower than the animal waste that I scraped off my boot yesterday.

  • Carstonio

    I admit that I had assumed that transgender and transsexual were the same thing. That doesn’t change my opinion of Kavanagh, who is lower than the animal waste that I scraped off my boot yesterday.

  • arcseconds

    I’ve also wondered that, especially as we now accept that sexual attraction doesn’t sharply divide down gender lines. Anyone who uses a public changing room will, probably, often be getting changed in front of people who are sexually attracted to their general morphology.

  • gpike

    Yeah. Though frankly if people want there to be “safe spaces” for women who were “born female”, then there should also be safe spaces for women who were not assigned as female at birth.

  • arcseconds

    Why should a woman have to wait for another woman to finish her business if the designated Men’s room is unoccupied… and vice-versa?


  • arcseconds

    Why should a woman have to wait for another woman to finish her business if the designated Men’s room is unoccupied… and vice-versa?


  • depizan

    Wait, wait, wait… are you seriously claiming that everyone in Arizona is rich?

    Bwahahahahhaha! No, really, that is absolutely the funniest thing I’ve ever heard.

  • P J Evans

    You might get a new birth certificate anyway. (I know it’s done for at least some adoptions: I believe my nephew has one from CA, where he was born, and one from NY, where he was adopted. The cousins in TX who were adopted *did* get new BCs.)