It sometimes feels like a genderless future is on the horizon. What defines a woman has always lurked in the negative space of what defines a man, and vice versa. Anyone with a Tumblr can tell you that, and everyone else, it seems, is getting wise to the illusion; last year, New York magazine officially declared gender theorist Judith Butler mainstream.
Even advertisers have begun to sell this new reality back to us, as the supposed feminine and masculine ideals shift. For the past year, at least, male celebrities like Jaden Smith and Young Thug in skirts and dresses have appeared in ad campaigns. But while the idea of dismantling of the gender binary may have won the culture wars, the politics that govern our lives are still far less progressive.
Nowhere is this more obvious than in the fight being waged over public restrooms in across the country, where discriminatory laws are being proposed to prohibit transgender people from using the restroom in accordance with their gender identity. These laws send the message that it is not possible nor acceptable for trans people to exist. They dictate that a woman is a woman according to her biological sex and a man is a man according to his; trans people, who defy this categorization, have no right to comfortably use the bathroom in public space.
This isn't just bad news for trans people. Laws like North Carolina's HB 2—which was recently repealed and replaced with new order that bars cities from passing explicit protections for transgender people—are based in old ideas of gender differences that fuel discrimination against anyone who does not strictly conform to the ideas of what "man" and "woman" should look like.
"The immediate consequence of the laws is to bar transgender students from access to restrooms and locker rooms," Chase Strangio, an attorney with the ACLU, told Broadly. "But they also contribute to an increase in gender policing across the board and heightened surveillance of people who do not conform to expected gender norms."
Emily Heath, a 40-year-old genderqueer pastor from New Hampshire, has been dealing with this type of discrimination their whole life. "I am female-bodied, but dress in a way that fits my own understanding of my gender identity, which, while not male, definitely trends masculine," they wrote in a blog post about what it's like to use bathroom as a non-binary person.
When Heath goes into the women's restroom, they usually get stares from people who are trying to figure out if they "belong" there. Once, during a layover at the Orlando airport last fall, Heath says a female TSA agent followed them into the bathroom to make sure they weren't a man. "She looked at me and looked me up and down like she was trying to figure out if I was in the right bathroom," Heath told Broadly over the phone. "Then she finally walked out, like, OK, that's fine. It felt pretty invasive. I was just trying to use the restroom."
I think that a lot of female-bodied people who don't conform with what society thinks someone who is female-bodied should look like face this a lot. It's exhausting.
"I'm not paying attention to anyone else there. I'm just minding my own business. Ideally, that's what everyone should be doing in the restroom—minding their own business," they added. "I shouldn't have to spend this much time thinking, Is it safe to go to the bathroom?, Where can I go to the bathroom?, Is there a gender-neutral bathroom?, Should I just wait until I get home?"
In the wake of Trump's election, and with the uptick of states considering anti-trans laws, Heath says the scrutiny has only intensified. "I think that a lot of female-bodied people who don't conform with what society thinks someone who is female-bodied should look like face this a lot. It's exhausting," they said. "In our current political environment, people feel a little more emboldened to let the worst of their thoughts come out in public. They feel like now it's more okay to say homophobic things or transphobic things. They feel justified."
Politicians that say that these laws protect women—based on bigoted ideas of trans people as predators, or trans women as men in disguise—but in reality they restrict cisgender women along with genderqueer and trans people. Following the initial passage of HB 2, reports of cisgender women who were harassed in the bathroom simply for having short hair made the news. The story of a 22-year-old woman in Connecticut, Aimee Toms, who was driven out of a Walmart bathroom by a man who thought Toms was trans, went viral.
In Dallas, Texas—where a proposed bathroom ban was just dropped—a man followed a woman into a hospital restroom because he thought she was a man. "It's difficult..." you can hear him stutter in a video she recorded. "You dress like a man."
Incidents like this don't make it hard to imagine a future where gender codes are strictly enforced, not just by self-deputized gender police but by actual police. The next step, after laws like HB 2 in North Carolina or what's being called the "Women's Privacy and Business Protection Act" in Texas, could be dedicated bathroom law enforcement to whom we must each show proof of our biological sex.
"We don't know what someone's genitals look like or what chromosomes they have just by looking at them, and laws that purport to regulate spaces based on genitals or DNA are opening the door to a host of unknown intrusions into our private medical information, our identification documents, and our bodies," Strangio said.
An inclusive future doesn't just recognize that trans women should be freely allowed to go to the women's restroom, or that trans men should be able to use the men's room, but that the methods we use to sort people by gender—whether it's when they need to pee or elsewhere—are arbitrary and harmful.
"This is all tied to the bigger issue, that anyone who doesn't match the binary creates panic. Technically, if I go to the women's room in North Carolina I'm following the law, but I'm still going to get some stigmatizing looks." Heath said.
Heath says that they prefer to use gender-neutral bathrooms—and perhaps the same would hold true for the rest of us. No matter how we choose to appear, a gender-neutral space will always be the perfect fit. There would be no occasion for ID checks or citizens' arrests. And the subtle reminder in public space that the categories "man" and "woman" don't do justice to the complexity of human experience would probably go a long way toward changing the way people perceive of gender. As Heath put it: "Why are we so stuck in this idea that there's a women's room and a men's room?"