An advocate and a critic debated the merits of a North Carolina law that requires transgender people to use the public bathroom that corresponds with the sex listed on their birth certificates, not their gender identity, at a lunchtime forum at Rutgers Law School in Newark on Tuesday, Oct. 11.
The law, which was passed in March, has come under national criticism for limiting anti-discrimination protections for gay, lesbian, bisexual and transgender people.
Ed Whelan, President of the Ethics and Public Policy Center, spoke in favor of the law, while Robyn Gigl, a transgender rights attorney, spoke against it. The discussion was moderated by Rutgers Law Professor Carlos Ball, a published author on LGBTQ issues.
“It’s a departure from reality,” Whelan said. “A biological male is a male.” He said allowing people to choose their own self-identification will “lead us down a dangerous path.”
But Gigl argued that the law portrays transgender people as predators and that someone who has lived as a man or a woman should not be forced to use a bathroom that doesn’t correspond to their identity. “Being trans is not a lifestyle choice. You don’t choose one day. You either are or you’re not, you have a core gender identity,” she said. “A trans woman is a woman period. We want to use the bathroom in accordance with our sex.”
Whelan said the law allows a person to switch bathrooms once their birth certificate is modified to reflect their new sex, which can be done after gender reassignment surgery. But Gigl argued that many trans people don’t want to undergo reassignment surgery and for some who do, they are unable to get their birth certificates changed depending on the state where they live.
“What the law in North Carolina is trying to fix is a problem that doesn’t exist,” she said, adding that since 2007, New Jersey has had a law that protects people from discrimination based on gender identity and there have been no problems based on the law.
Whelan countered that there were “privacy, decency and modesty interests” to consider: “When you lower the bar allowing trans people in the bathroom, you do make things easier for non-transgender perverts and harassers.” He asked how women, for example, would feel with biological men showering in open showers next to them, such as in a dormitory at a public school, to which Gigl countered, “Trans people are not exhibitionists, they don’t want people to see their bodies.”
The North Carolina law is being challenged in court, but the trial is not scheduled to begin until next year. A law student asked how the bathroom law would be enforced and Whelan said he anticipated that a police officer or security guard would be called on when a trans person violated the bathroom rule.
Gigl said trans people should be allowed to live according to their gender identity, but Whelan disagreed, “What obligation does that make for us to treat a person that way? It’s a dogma that defies reality.” Gigl shot back, “For someone to tell me I don’t know who I am, I find it insulting.”
The talk was sponsored by the law school’s LGBTQ Law Caucus and The Federalist Society for Law & Public Policy Studies.
