The William and Mary Journal of Women and the Law just published my article, “(No) State Interests in Regulating Gender: How State Suppression of Gender Nonconformity Violates Freedom of Speech.” I was thinking about doing a blog post that summarizes the key argument. And then I read about the proposed “bathroom bill” in Arizona, and knew I had to do a post on it. I devote a substantial portion of my article to how the state restricts restroom use by gender nonconforming people. Whatever interests the state might typically have in sex-segregated restrooms, by specifically targeting transgender people, the state violates fundamental autonomy interests underlying the First Amendment. I’ll use this post to summarize the key arguments from my article and apply them to this specific proposal.
A state representative in Arizona just proposed a bill to prevent transgender people from using the restroom. The bill would require people to use the restroom associated with the sex listed on their birth certificate. It has been dubbed the “show me your papers before you go potty” bill by some commentators. While debates around legal protections for transgender people have often devolved into misinformed wars over restrooms, this bill is one of the most extreme responses I’ve seen.
Representative John Kavanagh proposed the bill in response to a new anti-discrimination ordinance in Phoenix. The Phoenix ordinance would protect lesbians, gays, and transgender people from discrimination in public accommodations. But Kavanagh claims it would let anybody use any restroom at any time. In response, he drafted a state bill that would require people to only use restrooms that matched the sex listed on their birth certificate. This would mean, for example, that a transgender man who consistently passed as male would still be required to use the women’s restroom if his birth certificate listed him as female. Violating the proposed bill would result in a charge for disorderly conduct, a misdemeanor crime with a penalty up to six months in jail and a fine up to $2500.
A Summary of my Theoretical Argument
Freedom of speech might seem like an odd approach to a bill like this. After all, for gender nonconforming people, the immediate concern is probably more about personal safety than about self-expression. A trans woman cannot safely use the men’s restroom. But freedom of speech does focus our attention on how this bill violates fundamental democratic principles of autonomy and self-expression.
I begin my article by discussing the values underlying freedom of speech. Why do we protect speech in the first place? Freedom of speech is often defended as a critical part of democracy. It is described as promoting the “marketplace of truth.” The idea is that open debate is required so that the best (true) ideas can emerge as victorious in some sense. I argue that we also protect freedom of speech based on the value of autonomy and self expression. The state cannot regulate speech because that would undermine democracy. But, the state also cannot regulate speech because people have an autonomy interest in self-expression. As a society, we have decided we want to protect individual self-expression from state interference.
Last year’s Supreme Court decision on the Stolen Valor Act exemplifies this interest in autonomy. In United States v. Alvarez, the state prosecuted Xavier Alvarez for lying about winning the Congressional Medal of Honor. Alvarez’s lies were a form of self-aggrandizement, made as he introduced himself to people for the first time. The Supreme Court described Alvarez’s lies as having little social value and being despicable to many. Alvarez’s lies seemed to contribute nothing to the marketplace of truth or democracy. They were not part of any policy debate or other public interest typically associated with freedom of speech. Nonetheless, the Court explained that these lies served a self-definition purpose. Absent fraud or other criminal activity, the state could not regulate speech without infringing this interest in autonomy. While this autonomy interest was prominent in Alvarez, the autonomy interest underlies all freedom of speech: the state should not be able to interfere with self-definition.
Generally, state regulations of conduct are not subject to the First Amendment. But when the state regulates conduct because of the message it expresses, the law is subject to the First Amendment. A classic example of this is flag burning. In Texas v. Johnson, the Supreme Court explained why the state’s alleged interests in regulating flag burning were really about preventing people from expressing dissent: “The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do not enjoy unity as a Nation. These concerns blossom only when a person’s treatment of the flag communicates some message, and thus are related to the suppression of free expression.”
The critical test is whether the state’s interest only arise because of the expressive nature of the conduct. When the state criminalizes arson, it is not concerned with what the fire might express. When the state criminalizes flag burning, it is concerned with what the fire expresses. The state is only interested in the conduct because of the message expressed. My article argues that state suppression of gender nonconformity is precisely the kind of regulation of conduct that should be subject to the First Amendment. By singling out conduct that expresses gender nonconformity, the state is targeting conduct specifically because of the message it expresses.
As sociologists have long argued, we all perform gender everyday. Anatomy plays almost no role in how we identify people as male or female. Clothing, talking styles, hair styles, mannerisms, and other behavioral cues all tell us whether someone is “male” or “female.” Most people constantly seek to “prove” their gender. We get uneasy when we cannot identify someone as male or female. The fact that gender nonconformity expresses a message is evident in the violent reaction to it. People are upset by men wearing dresses precisely because they understand the message of gender nonconformity.
Gender nonconformity can express multiple messages. If a transgender man passes as male, he has communicated his masculinity. The fact that his masculinity is accepted is proof that this message has been communicated. But even — and especially — if he does not pass, the message of nonconformity is communicated. Nonconformity is readily understood as expressing a message of deviance.
This is, of course, a very condensed version of my theoretical argument. The key is that the state cannot single out conduct because it expresses gender nonconformity. When it does, the state violates autonomy and self-expression interests underlying freedom of speech.
The Arizona “Bathroom Bill” Would Violate Freedom of Speech
A whole section of my paper discusses restrooms. Restrooms are a key site of gender policing in our daily lives. Unfortunately, for transgender and other gender nonconforming people, this often literally involves policing. Trans people may be arrested, harassed, or assaulted when they attempt to use the restroom. Many explain that they cannot safely use men’s or women’s restrooms. Thus, in the restroom, we see expression of gender nonconformity quite violently suppressed by the state.
Restrooms are also a key site for expressing gender identity. Many of us never think about how our restroom choice expresses our gender. We simply use the “correct” restroom. Yet we know that by using the “correct” restroom, we are communicating our masculinity or femininity. For trans people, restroom choice is a very fundamental way to express identity. It fundamentally involves the autonomy interest in self-definition. When a trans woman is not challenged in the restroom, she has communicated her identity. Thus, restrooms very fundamentally involve the autonomy interest underlying freedom of speech. Even if we think that the state might have interests in enforcing sex-segregated restrooms, we should be very careful about how those laws potentially infringe on individual autonomy.
In the case of the proposed Arizona bill, it is very clear that the law singles out transgender people solely in order to suppress expression of gender nonconformity (indeed, Kavanaugh does not hide his disdain for the transgender community). Kavanagh explained that “This law simply restores the law of society: Men are men and women are women… For a handful of people to make everyone else uncomfortable just makes no sense.” But the fact that Kavanaugh is “uncomfortable” is not a basis for restricting people’s right to self-expression. These laws are not about safety, privacy, or anything else. They are about suppressing communication of gender nonconformity. We see that clearly in how Kavanagh singles out transgender people.
To return to my theoretical argument, the key question is whether the state’s interests are related to the expression of a message. Privacy and safety are the commonly mentioned reasons for sex-segregated restrooms. Kavanagh alluded to these interests when he suggested that male pedophiles would use the women’s restroom to assault girls. This scare tactic should not be allowed to charade as a legitimate state interest. Whatever safety interests the state has, they are not accomplished by singling out transgender people. Several other laws already target the child predator, and this law is not really concerned with the child predator. The choice to single out trans people is not based on any real concern with safety. Instead, transgender people are targeted because other people are uncomfortable with the message of gender nonconformity. Kavanagh singles out transgender people specifically to suppress communication of gender nonconformity. Kavanagh’s explanation did not center on safety or privacy, because he is not proposing a general law designed to promote safety or privacy. He is proposing a law to sanction conduct that expresses gender identity.
Most of the reaction to this bill has rightfully focused on the dangers it poses for trans people. Like everyone else, most transgender people simply want to use the restroom in peace. This law criminalizes this basic part of life because of some people’s uneasiness over the idea of gender nonconformity. But freedom of speech prohibits the state from regulating conduct because some people are uncomfortable with the idea expressed by that conduct. My article focuses our attention on the alleged state interests behind this law. Whatever interests the state may have in sex-segregated restrooms for privacy and safety reasons (interests I discuss more fully in my article), the state cannot simply single out gender nonconformity. When the state does single out gender nonconformity, it is acting based on the message expressed and not any interest in safety or privacy. Critically, my argument puts the focus where it belongs, on the state interests involved, instead of on the choices of transgender people. A freedom of speech lens highlights the very real ways that this proposed law would infringe on the autonomy and self-definition interests at stake.