MUNGER: Discriminating against privacy

We discriminate all the time. Track meets discriminate based on speed and endurance; a “discriminating palate” allows a person to appreciate fine food and drink. Physicians discriminate: gynecologists specialize in the treatment of women; prostate surgeons see only men.

Is the public policy of dividing access to public facilities (bathrooms in public places, shower facilities for gym class in high school) based on sex discriminatory? Let’s start with having separate bathrooms for men and women in the first place. One reason to do that is that the physics of urination is different depending on how one is equipped. This makes for long lines at the lady’s room. At a baseball game in San Francisco, I saw a young woman sprint in, back up to a urinal, hike up her skirt, and then scamper back out when she was finished.

Few women would do that. They prefer privacy when they disrobe, and women must disrobe more than men to urinate. So separating bathrooms by sex is a difference that is not discriminatory. Prudish or not, men and women (including many gay men and lesbian women) don’t want to use the “other” bathroom.

What about transgender folks? It’s tempting to say, “People can use whatever bathroom they want.” But (some) men might want to see women disrobe. So the solution has either been to say “People can use the bathroom of the sex they identify with” (the Charlotte solution) or “People must use the bathroom that matches their plumbing” (the H.B.2 solution).

Given the preemptive power of state law (North Carolina cities depend on central authority, by statute), H.B.2 wins. And that’s a dumb solution. It seems discriminatory: people who appear, and for all practical purposes live, as one gender must use the other bathroom.

But H.B.2 was a reaction to what we might call “The Charlotte solution.” On Feb. 22, 2016 Charlotte amended its anti-discrimination statute, in ordinance 7056 (Book 59, p. 743). Have you actually seen that ordinance? It’s pretty long (9 pages) but the key provision was actually a deletion. Section 12-59 of the old ordinance had allowed separate (by gender) bathrooms, public showers, dormitories, and other facilities that are “in their nature distinctly private.”

Let’s make sure that’s clear: that section was deleted. That means that, under the Charlotte statute, “discrimination” by gender would no longer be allowed. Of course, that is in itself discriminatory: If people can choose which public bathroom—or high school gym shower — to use then the privacy rights of people who want to be segregated by gender are being trampled. It has been estimated that there are between 20,000 — 25,000 thousand transgender folks in North Carolina, and many of them appear to match their chosen, rather than biological, sex. It makes sense for them to use the bathroom their appearance dictates; that’s why H.B.2 is dumb. But the Charlotte law would allow anyone to use bathrooms or showers of either gender. The price of admission would simply be to claim (presumably, though the Charlotte ordinance did not say, with a straight face) that one “identifies” with the gender of the chosen bathroom.

The point is that the Charlotte “solution” is even worse than H.B.2. Tactically, the General Assembly made a mistake passing H.B. 2. If they had simply pointed out the flaws in Charlotte’s Ordinance 7056, the City Council would be in the hot seat, defending their choice to discriminate against privacy.

Michael Munger is a professor and director of the Philosophy, Politics, and Economic Program at Duke University.