Transgender bathroom use can't be policed

The argument

This position sets aside the question of whether restrictions on transgender bathroom use are desirable and asks only whether they could be made to work. Its answer is that they could not. A law of this kind depends for its effect on enforcement at the point of entry, and the only mechanism that would actually deliver that, placing security on bathroom doors to check identification documents, is not being discussed by anyone. No jurisdiction has seriously proposed stationing officials outside every restroom in every school, office and public building, and without that the prohibition has no way of reaching the conduct it targets. What remains is a rule that relies on voluntary compliance from the people least likely to offer it. Transgender people will continue to use the restroom of the gender they identify with, and the record where such rules have been applied bears this out: in cases where transgender students have been told to stop using a bathroom, they have been reluctant to do so. That reluctance is not incidental. Using the other facility is precisely the outcome the person experiences as intolerable, so a rule commanding it asks for compliance in the one respect where compliance is hardest to obtain, and trans people will continue to use the bathroom they feel comfortable in. North Carolina supplies the demonstration. Pat McCrory's office was not able to stop a transgender citizen using the bathroom of their identified gender, even in the state whose bathroom bill had become a national controversy. Mara Keisling, the head of the National Center For Transgender Equality, used the women's restroom there while working to repeal that very bill. If a law cannot be enforced against its most visible and publicly identified opponent, in the state that passed it and at the height of the attention paid to it, the claim that it is unenforceable in general is difficult to resist.

Context

A policy restricting the bathroom use of individuals raises a lot of questions. Who will police the restrooms? Will they check the government-issue ID of anyone suspected of using a bathroom for the sex that isn’t on their birth certificate?

Premises

Counter-arguments

It is enforceable with public cooperation. If the government legislates to force transgender people to use the bathroom for the sex written on their birth certificate, then it legitimises the public to take policing into their own hands. If they suspect someone of breaking the law, they may ask private and probing questions themselves. If they suspect illegal activity, the member of the public could phone the police. It could make the experience of using a public restroom even more uncomfortable for trans people and lead to an increase in harassment, but if they are breaking the law they must face the consequences.

Rejecting the premises

[Rejecting P2] The law is enforceable with public assistance.