Public Bathrooms

A few years ago the public bathroom scandal concerned the ignorance of male architects in incorrectly designing toilet capacities for the different requirements of men versus women. Clear evidence could be witnessed during intermission at the Kennedy Center in the form of much longer lines outside the Ladies’ rooms than the Men’s rooms. This was a real problem and thus a real scandal.

Now we have a totally fictitious scandal of transgender men and women using public bathrooms appropriate to their sexual identity rather than their sex recorded in their birth certificate. All these years of transgender women using the Ladies’ Room went unnoticed, but you can believe there would be (will be?) a ruckus if they had used the Men’s Room. This is politics of the worst type pure and simple by religious fanatics and Trump-like exploiters of latent bigotry (though to Trumps credit he also labeled this problem a phony, non issue).

The highly respected economist, Dierdre McCloskey—born Don, shared some of her experiences with me in correspondence:

“Before I “passed” (surgery, working at it) I was frightened to go into a ladies’ room, but I could hardly go into a men’s room in a dress.  You can imagine how dangerous that would be!  I was allowed to put Female on my driver’s license in tolerant Iowa in 1995.  But you are right that it is unwise in such matters if nothing much is going wrong to stir things up.  I’ll bet now that Iowa has rules from the state.  Then it was left to Iowans’ ample common sense.  My passport F was tougher—I wept to the woman at the New Hampshire passport office, and she relented and sent my passport the day before I was boarding a flight to go to Holland to teach for a year, in January 1996.  So the State Department unofficially was cool.  A year later I tried to get Harvard to change my degree from Harvard College class of ’64 to the women’s college, Radcliffe.  The male dean I spoke to thought not.  I whined, “But the State Department had no problem giving me an F passport.”  With a smile in his voice he replies, “But Harvard is older than the State Department!”

“There’s more on all this in my memoir of my transition, Crossing: A Memoir (1999 University of Chicago Press).

“The bathroom “issue” is entirely phony.  It has never been a problem.  Anyway, if men wanted to sneak in (they don’t), they could always have done so, with or without North Carolina’s law.  How is it to be enforced?  DNA testing by the TSA at every bathroom door?  Anyway, your house has a unisex bathroom, I presume, and in Europe they are not entirely uncommon—after all, the stalls have doors.  Etc, etc.  On both sides it is just a club to beat up the other side in the silly Cultural Wars, and to make people hate and disdain each other.  Adam Smith would not have approved.”

In fact my friend’s Washington restaurant, Café Asia, has one large unisex bathroom—a long row of washbasins and mirrors opposite individual, locked toilet stalls. No one seemed upset. “Nobody in this entire debate has produced a single documented instance of a trans person initiating any kind of violence or sexual harassment in a bathroom.” Elishe Wittes, a Washington DC high school student https://www.washingtonpost.com/opinions/one-bathroom-for-all-install-gender-free-single-user-restrooms/2016/05/13/0d15664c-1907-11e6-924d-838753295f9a_story.html

So the whole issue is phony. But it does raise once again the question of how best to promote the broadening of the civil liberties of all Americans and our history reflects broad, if sometimes uneven, progress. From the abolition of slavery the achievement of full equal protection of the law for all (abolition of: Jim Crow laws, the ban on interracial marriage, separate but equal, ban on same sex marriage) has been a slow process of broadening and deepening public understanding and acceptance to the dignity and rights of all law abiding people. Crucial Supreme Court rulings that have confirmed such rights came only after they were broadly supported by most (but not all) of the public. So the real battlefield for enlightened, (classically) liberal values is one on one, and in the churches, synagogues, Mosques, classrooms, and clubs in which people talk to each other in search for better lives. Once those who wish to deprive such protections to some group (blacks, Jews, gays, transgender, etc.) fall into a discredited minority, they rather quickly fall (relatively) quiet once the Supreme Court has ruled. Man’s insular, self-protective nature, and attachment to the familiar, eventually gives way through education to the higher values and enrichment of modern civilization. This will surely happen again. Though the Trump backlash may slow the process.

Protecting our Civil Liberties

Richard Nixon reminded us of the great dangers to our cherished liberties inflicted by the powers available to our government. Remember his “enemies list.” Or if you are too young to remember it real-time, hopefully you have read about it (Watergate!! Remember?). Nixon was forced to resign because of it.  It was a victory of our free press.

Or if you want something more recent, what about “Filegate.” According to Wikipedia: “The White House FBI files controversy of the Clinton Administration, often referred to as Filegate, arose in June 1996 around improper access in 1993 and 1994 to Federal Bureau of Investigation security-clearance documents. Craig Livingstone, director of the White House‘s Office of Personnel Security, improperly requested, and received from the FBI, background reports concerning several hundred individuals without asking permission. The revelations provoked a strong political and press reaction because many of the files covered White House employees from previous Republican administrations, including top presidential advisors. Under criticism, Livingstone resigned from his position. Allegations were made that senior White House figures, including First Lady Hillary Rodham Clinton, may have requested and read the files for political purposes, and that the First Lady had authorized the hiring of the underqualified Livingstone.”

I feel bad using the above example after Bill Clinton’s wonderful article in today’s Washington Post calling for the repeal of DOMA, which he had signed into law in an earlier time.

Any power that government has can potentially be abused, so our Constitution strictly limited them and required checks and balances on their use. When I was in college – U of C Berkeley in the mid 1960s—George Orwell’s 1984 was still several decades in the distant future. Big Brother (an all-powerful government that looked after our safety and its own), with its ability to spy on our every activity to ensure that we behaved in the country’s (i.e. the government’s) interest, was a fictional nightmare that we couldn’t imagine happening in America.

Then came 9/11 and the Patriot Act. The American Civil Liberties Union flagged three powers in the Act, even after it was renewed in May 2011, that go too far:

“The three expiring provisions of the Patriot Act give the government sweeping authority to spy on individuals inside the United States, and in some cases, without any suspicion of wrongdoing. All three should be allowed to expire if they are not amended to include privacy protections to protect personal information from government overreach.

                  Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.

                  Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.

                        Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called “Lone Wolf” provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.”

Now our government has hinted that it might have the power to undertake extra judicial killing of Americans on American soil via drone attacks. I have been stunned in recent years at the relatively quiet acquiescence of many Americans to these dangerous extensions of unchecked or under-checked government powers. They happily send their neighbors’ sons and daughters to far off lands to fight “our” enemies and to sometimes die there, while not having the courage to tell our government here at home to back off.

Today’s “The New Yorker” headlined “The Borowitz Report” with: “Poll: Majority of Americans Opposed to being Killed by Drone.” This is meant to be satirical, of course. But until Rand Paul filibustered in the U.S. Senate against the confirmation of John Brennan unless the government would state clearly that it would not target Americans in the U.S. without due process, you might have thought that Americans didn’t care much. Earlier this week Attorney General Eric Holder “wouldn’t rule out the possibility of a drone strike against Americans on U.S. soil. But he said the administration wasn’t planning on such a strike and would use the option only under extreme circumstances.” (CNN: http://www.cnn.com/2013/03/07/us/drones-five-things/index.html)

Following Senator Paul’s filibuster the Attorney General sent a new letter to the Senator stating:

“It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ ” Holder wrote. “The answer to that question is no.” (CNN)  This is a small but important victory for restraining Leviathan and protecting our liberties and it has taken a long time. I wrote on this same subject almost exactly one year ago: https://wcoats.wordpress.com/2012/03/22/extra-judicial-killing/

Thank you Rand Paul.

I have spoken out in defense of our constitutional liberties on a number of occasions as well, including: https://wcoats.wordpress.com/2012/09/15/further-thoughts-on-free-speech/,   https://wcoats.wordpress.com/2012/09/29/freedom-of-speech-final-thoughts-for-a-while-at-least/

“The price of liberty is eternal vigilance”