Toilet ban for transgender people: The House of Representatives has to implement it laboriously

“I’m sorry, ma’am, but you seem a bit manly,” said the guard outside the restroom. “Would you mind waiting here while I find someone to examine your genitals?”

If you can imagine this scenario and think it’s completely reasonable, I’m worried. If the idea of an “anatomy examiner” in the bathroom seems both ridiculous and crazy, then you probably realize that such rules cannot be reasonably enforced.

Making edicts that we don’t enforce is a bigger American problem than restroom supervision.

It was abundantly clear to me that gender identity is, at its core, a matter of free expression. From a constitutional perspective, one man’s view that he is a woman should not be privileged over another man’s view that he is not a woman.

I oppose laws requiring preferential use of pronouns. Neither gender-affirming surgeries for minors nor for transgender women playing women’s sports should be allowed.

For someone with such conservative views, it’s easier for me to agree with the so-called “bathroom bans” and call it a day.

But I find such laws so incredibly strange.

Who will really enforce Congresswoman Nancy Mace’s bathroom rule?

The issue resurfaces as the first openly transgender member of Congress, Democratic Rep.-elect Sarah McBride, takes the Delaware seat. Rep. Nancy Mace, R-South Carolina has introduced a bathroom ban resolution specifically in response to McBride’s impending arrival.

Because the congressional rules package won’t be passed until the next Congress, House Speaker Mike Johnson issued a general statement regarding the use of single-sex facilities throughout the U.S. Capitol complex: “All single-sex facilities in the Capitol and House Office Buildings – B. Restrooms, changing rooms and changing rooms – are reserved for people of that biological gender.”

That’s all well and good, but imagine what enforcing the rule will do for McBride.

First, someone has to catch McBride breaking the rule. There are restrooms throughout the United States Capitol Complex. Of all the security issues facing Capitol Hill, having Capitol Hill police stationed for sexual organ screening seems unlikely. Mace and Johnson are quite busy, as are their colleagues and employees. But for the sake of argument, let’s say McBride gets caught on his way out of a women’s restroom.

“Ma’am, I’m afraid this bathroom is for women only,” the inspector says. “I’m a woman,” McBride replies. “What I mean is that it is reserved for ‘biological women,’” the inspector replies. “It’s not on the door,” McBride replies. “Did you check everyone or just wait for me?”

So we have the option of either searching “known transgender people” or checking everyone who walks through the bathroom door.

Avoid passing laws to enforce certain perspectives

Let’s omit the first case. Being transgender is not a crime. The idea of putting anyone on a toilet registration list is crazier than a payday at a peanut farm.

Nor will Congress implement uniform gender controls for restroom use. I am perplexed about the screening process that determines which women need to show their genitals to the nurse. Do we ask them to immediately estimate the relative size of the Adam’s apple? Maybe we screen all women who are taller than the average American female height of 5’10”? My wife is several inches above that threshold, and I can’t imagine anyone brave enough to stand between her and the bathroom when nature calls. Everyone likes TSA spot checks at the airport…never said anyone.

All of this congressional bathroom business is essentially about expressing views on gender identity.

The right response to speech that upsets us is to talk more. We should not legislate to enforce our views. Conservatives who cannot abide hate speech laws, college speech codes, and other government-mandated speech should not do the same by passing laws and rules they do not want to enforce.

Johnson defended the bathroom regulations and also noted, “Women deserve women-only spaces.” But what about the men who suddenly find transgender women in their bathrooms? How do we know women aren’t sneaking into our restrooms to take a look? Should we just accept that every person who presents as female in our restrooms and locker rooms was assigned male at birth? And don’t tell me that no woman would ever go into the men’s room, you sexist.

So I suspect we’ll have to use an anatomy screen for the men’s room too.

Have the gender debate, but don’t cancel each other out

Put the argument in the context of another problem. Conservatives would lose their minds if Trump’s promise to enforce immigration law was limited to a resolution saying that people here without legal status cannot stay in America.

Why? Immigration law can actually be consistently enforced. That hasn’t been the case in recent administrations, but a majority of Americans want to see such laws upheld rather than ignored.

On the other hand, I can’t imagine that the majority of Americans would want to expose their genitals to enforce gender regulations in restrooms and locker rooms. We have numerous criminal laws in place if someone, regardless of gender, commits crimes in the toilet.

America needs a vigorous, open debate about gender issues, and we appear to be doing just that. Neither side of this debate should be able to silence or cancel the other side.

To McBride’s credit, the freshman congressman dismissed the bathroom business as annoying noise. “I’m not here to argue about bathrooms. “I’m here to fight for Delawareans and reduce costs for families,” McBride said on X. “Like all members, I will follow the rules laid out by Speaker Johnson, even if I disagree with them.”

We need fewer laws and regulations. We shouldn’t create new ones until we consistently enforce the ones we already have. Conservatives in particular should understand this. Congress should focus more on immigration, inflation and preventing World War III than on who sits next to them in the booth.

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