Let me be frank and up front from the start. I was biologically born male, and I have always felt and viewed myself as male. In addition, I have never had an urge to cross-dress or a desire for a sex change operation.
However, in a free society an individual is at liberty to dress however they want and pay for any “radical” cosmetic surgery they wish to have. What they cannot do is impose their choices on others. Essential to the principle and practice of individual liberty is freedom of association.
It would be inconsistent in a free society if Jews were to insist that Christians wear a Star of David around their necks rather than crosses and have their holy day on Saturday rather than Sunday. And it would be a breach of freedom of association if without consent Christians were to enter a Jewish Temple and started to hand out copies of the New Testament and preach that Jesus is their lord and savior.
There are ecumenical meetings when people of different faiths come together to express their common beliefs and shared values, or even to discuss and debate what may unify them as well as where and why they may differ. But these are occasions of mutual agreement and voluntary association. It would be considered a breach of freedom to compel anyone to attend such meetings and participate in any discussions or religious services, even if some considered that it would be good for their souls.
Cultural Transformations on Race and Sex
Western societies are going through some significant cultural transformations right now, especially concerning the meaning of and attitudes about race and gender. The transformation concerning race has been going on for decades in America. It has been a difficult and sometimes torturous route from old fashion racism and bigotry to a society in which increasingly people have come to look upon another person beyond and beneath the color of their skin.
This journey has not ended. But only the most narrow minded cannot fail to admit that the America of today is far different from the America of 1916 or 1956 or even 1996 in many aspects of race relations. This journey has not been completed, but it is far from where it began. Anyone who calmly takes an historical perspective cannot deny this major transformation, even with all of the remaining racial tensions and problems in American society.
A similar transformation concerning sexuality is occurring, as well. It, too, has been a long journey from anti-sodomy laws to the legalization of gay marriage. It is certainly a biological fact that virtually all higher life forms are divided into two genders, the sexual interaction between which is essential for procreation of that species.
But it is also a fact that for all of recorded human history there has been a certain percentage of the human race that have been physically attracted to members of the same sex. Whatever combinations of “nature” and “nurture” may generate these attractions in individuals, they remain, nonetheless, also a reality in human society. Recognition and respect for the autonomy and rights of every individual has logically required the eventual acceptance of freedom of peaceful and voluntary association in these matters without political or legal interference, as much as in the case between members of the opposite sexes.
Transgender and the Government
The latest aspect of this transformation in social and cultural attitudes now is seen in the case of “transgender.” Regardless of how “nature” may have made an individual, what if that person “identifies” himself or herself with the opposite sex, without the medical procedure of a sex change? May a man declare himself to be a “woman,” or a woman declare herself to be a “man,” and ask to be treated accordingly by others in society?
As a philosophical individualist and a political classical liberal, I consider that the law, in principle, should and needs to respect a person’s self declaration in such matters as long as they have not done so for an unlawful or illegal criminal purpose. And in government accommodations in such places as, say, courthouses, and in spite of the additional taxpayers’ expense, matching toilet facilities for men and women, there also should be “transgender” facilities of some sort. There must be accommodations for taxpaying citizens who would feel uncomfortable in satisfying biological functions in the same limited space with those they define as members of the opposite sex, and at the same time for there to be facilities for those who are indifferent or who consider it “right” for transgender individuals to share such facilities with them.
As in all “public” (that is, government) spaces this will not satisfy everyone, and most especially those who are transgender. But this, it seems to me, to be the only way that those who do not desire to share “bathroom” space with members of the biological opposite sex can have their rights to privacy respected as well.
North Carolina and the “Bathroom Wars”
But what about transgender access to bathrooms in the private sector? In March 2016, the North Carolina state legislature passed a law prohibiting the use of men or women’s toilets by anyone other than those biologically of that respective sex. This was in response to a local ordinance in the city of Charlotte, North Carolina that banned bathroom discrimination against transgender individuals from using that facility reflecting the gender with which they identify.
Let me suggest that both the Charlotte city ordinance and the state legislature’s law are inconsistent with and violations of individual liberty and freedom of association.
Freedom of association applies to private enterprises as it does to the actions of individuals in other associative walks of life. Many businesses, due to concerns for the wishes and desires of their employees, or their customers, or from interest group pressure have already announced their policy of allowing transgender persons to use the bathrooms of the gender they identify with.
Target’s Decision has Made It a Target
Target department store is one such national corporation that has done so for both their toilets and fitting rooms. They have said that, “Inclusivity is a core belief at Target. It’s something we celebrate. We stand for equality and equity, and strive to make our guests and team members feel accepted, respected and welcomed in our stores and workplaces every day.”
They have been challenged, however, by a proposed boycott by the American Family Association, which has called upon Target customers to no longer shop in Target for as long as Target follows this policy, claiming that they have already obtained over 200,000 signatures on a petition to that affect.
It is also a right of freedom of association for existing or potential customers or employees to decide whether they wish to shop at or have a job with company that chooses to follow such a bathroom policy. The company’s owners and managers should decide which policy more closely reflects the values and preferences of those whose business they wish to maintain and obtain and the employees they wish to retain or hire.
It could turn out that most customers at Target don’t mind who the person is in the next fitting room or bathroom stall. And Target’s owners and managers may find that following such a policy does not noticeably have a negative impact on their revenue stream and market share, plus fosters a public image of “inclusiveness,” as they said, which they consider from their perspective to be “good business.”
On the other hand, Target may find that a sufficient number of customers seriously disagree enough with their decision that such a long-lasting boycott cuts into their “bottom line” to a significant degree. The company would then have to decide whether to rethink its bathroom policy or choose to accept the loss of revenue and market share because they considered their initiated policy the “right thing” even in the face of consumer disapproval.
Either way, the chose should be considered the private enterpriser’s own decision on how to manage their property and business. They reap the benefit or suffer the loss.
Denying Enterprises and Customers Freedom of Association
It is therefore a violation of Target’s property rights to their own establishment and their freedom of association with customers and employees for the North Carolina state legislature to interfere by passing legislation on how the company chooses to determine access to their store facilities by legally banning such voluntary choice by all parties concerned in the marketplace.
But if the state legislature’s actions represent an abridgement of private property and freedom of association, so did the local ordinance passed and imposed by the Charlotte city government legally prohibiting a private enterprise from banning transgender individuals from access to bathrooms other than the ones reflecting their biological sex. This, too, was an abridgement of private property and freedom of association. Imagine a children’s clothing or toy store or a game arcade. Whether always statistically justified or not, many parents are deeply and understandably concerned with small or young boys and girls in the unsupervised and not closely watched proximity of male strangers.
There are, tragically, enough instances in which young children have been molested and abused by adult men that parents are reasonably alert to the possibility of that happening to their or other people’s children. If the owners and managers of such businesses, therefore, establish men’s and women’s only bathrooms, or separate boys and girls bathrooms, both from a sense of proper safety of those on their premises as well as a judgment of the wishes of their parent or adult customers, it is a violation of the owners’ and customers’ free choice and association to have a ban on such bathroom policies on a company’s premises.
This example of children, of course, is rightly extended to any private enterprise and business establishment, even when the clientele are only or primarily adults. If a sufficient number of the businesses customers express a preference for use of men’s and women’s only bathroom, then they are reflecting the “will of the people” who interact with them in the marketplace.
To impose a “one-size-fits-all” rule, in this instance, bathroom facilities on the premises of a private enterprise, and regardless of whether it commands or prohibits such facility use in one direction or the other is equally an abridgment of the rights of the owners and the expressed choices of the consumers.
The Bathroom Wars and a Loss of Liberty
Times are a-changing, and this includes cultural and ethical etiquette and rules of social interaction in both government and private facilities. There may come the day when transgender bathrooms become the general norm due to changes in people’s attitudes, fears, concerns and prejudices. Or they may not.
But what is clear is that the new “bathroom wars” between those who advocate forced gender segregation versus those demanding coerced gender integration are both variations on the same theme – the use of the power of the government to compel one segment of the society to accept and act within the preferences and demands of another part of that society.
Both of these positions, involving the use of force to get their way, are inconsistent with individual liberty, private enterprise, and freedom of association and exchange. And, therefore, represent another step on the road to less freedom in American society.
