LGBT Backlash Legislation and the Politics of Biology

By Maayan Sudai

Of the many responses to the monumental victory of the gay marriage movement in Obergefell v. Hodges in 2015, one was a backlash of legislative proposals submitted by conservative groups. A popular target was the regulation of sex-segregated public spaces like bathrooms, schools, etc. – also called “bathroom bills” – in TexasFloridaKentucky, and other states. The anti-LGBT bills are meant to either block the extension of anti-discrimination protections that could accommodate free use of sex-segregated public spaces, or strictly ban Transgender people from entering public bathrooms that fit their self-identified gender.

In South Dakota, failed bill HB1008 would have made it illegal for schools to provide accommodations for Transgender students and would have required every public bathroom, shower, or locker room be “designated for and used only by students of the same biological sex.” The bill did not pass, as Governor Dennis Daugaard vetoed it last March, affirming the authority of local municipalities to determine their own standards. Nevertheless, a few weeks later a similar bill was passed in North Carolina. The new law, also known as HB2 or the “Charlotte Bill” (more formally: “Public Facilities Privacy and Security Act”) came as a response to a local non-discrimination ordinance issued by the Charlotte City Council which provided protections and accommodation to the LGBT community in public bathrooms. HB2 affectively repealed the Charlotte ordinance, and restricted the ability of other cities in the state to expand equality measures beyond the standard determined by HB2.[1] Rich Schragger said that HB2 is “thus an anti-LGBT law masked as an anti-discrimination provision.”

The interesting legislative tactic utilized in both HB2 and HB1008 narrowed the anti-discrimination of protected classes through redrawing the protection using alternate language. For example, HB2 affirmed the illegality of discrimination against “traditional” classes like race and religion, but didn’t include gender identity or sexual orientation, and the category of “sex” was changed and specified to “biological sex.” HB2 defines biological sex as: “The physical condition of being male or female, which is stated on a person’s birth certificate”. HB1008 also defined “biological sex” as “the physical condition of being male or female as determined by a person’s chromosomes and identified at birth by a person’s anatomy” (my emphasis in both definitions).

Despite mismatching definitions of “biological sex” between states, I predict the term will become a keyword of conservative legislative efforts, given its capacity to shift the debate from traditionally-contested arenas like freedom of religion, to more ‘objective’ territories like biological standards and medico-bureaucratic definitions.

But the turn to physical anatomy, chromosomes and official declarations made at the time of birth by professionals will fail to enforce stability and certainty over such a highly fluid, unstable and inconclusive bio-social category like “sex”.  Legislators may think that turning to biology could block the efforts of social movements to interpret “sex” in a generous manner (e.g. to include trans-sex or gender identity), but it actually exposes the inability of institutions to agree on what constitutes sex, even in its most narrow and ordinary incarnation.

The Intersex movement has taught us that neither chromosomes, genital appearance, nor birth certificates are stable sex markers, but that in fact biological sex is a fluid and multi-layered concept that can be debated and redefined according to context and time.[2] It is cases like this that expose the inability of biology to serve as a stable criterion by highlighting the social character of categories we imagine to be determined by nature.

I predict the desire to de-politicize the debate by moving to a presumably apolitical territory will not hold in the long term, as biological definitions are also political arenas of social negotiation.

Opponents to transgender inclusion in Charlotte said the inclusion policy was detrimental as it granted room for “social engineering to allow people born as biological males to enter women’s restrooms.” They are correct regarding the social engineering aspect, but so are those who claim that social engineering was there from the very beginning when sex-segregated public spaces were built according to a sex-binary model in the first place. In other words: the status quo is not necessarily natural or neutral, so denying access to public bathrooms is just as much a social act as is allowing such access.

[1] For a clear and simple explanation of the context and process of this legislative effort, go to “Now I get it” on North Carolina ‘bathroom bill’ HB2.

[2] Intersex organizations have already condemned HB2, bringing their own biological indeterminacy to table.