Burkinis and Bathrooms

BURKINIS AND BATHROOMS

Sometime during the Apartheid years in South Africa there was a proposal to do an end run around international condemnation of the regime’s racism by having certain rights – presumably the important ones – attach not to skin colour but to membership in the Dutch Reform Church, whose members just happened to all be white. The proposal was never adopted, but if it had been it would have been the perfect example of targeting a policy objective by ricochet.

As of this writing – August 26, 2016 – thirty beachfront municipalities in France have been searching for a way to perform the same maneuver on the wearing of the burkini on public beaches, which they think non-Moslem bathers will find provocative given recent events in Paris and Nice. [Insert link.] The problem is how to word the ban so as not to prohibit Catholic nuns from wading ankle-deep in the surf to cool off on a hot summer afternoon. [Insert link.] If the burkini is described too physically, it’ll prove indistinguishable from a wetsuit. [Insert link.]But if it makes reference to the religiosity of the wearer, it requires policemen to be both theologians and mind-readers.

Most of us, I take it, find this kowtowing to public bigotry disgusting and wrongheaded. It’s akin to telling a woman how to dress lest her attire provoke the village rapist. Of course in this case the added irony is hard to miss. Instead of telling women to cover up, they’re being required, in effect, to strip down.

But for all the laughing stock the French are making of themselves, there’s a deeper and legitimate issue here, an issue being wrestled with this side of the Pond as well. Legislators in several jurisdictions in the United States have enacted laws requiring patrons of public washrooms to confine themselves to the washroom of the gender indicated on their birth certificates. [Insert link.]

Needless to say this has outraged the transsexual and transgendered community. But put yourself in the place of these legislators. Some may be kowtowing to bigotry. But others are simply trying to protect women from being ogled by straight men in a place that’s supposed to be a refuge from just such prying eyes.

How is such refuge to be protected? What test could be administered for gender identity other than self-identification? Imagine the following interrogation:

“You say you’re female, huh. So why did you identify as a male yesterday when you tried out for the football team?”

“Because I only discovered my true nature today.”

“So you won’t be playing football tomorrow?”

“Not unless I discover, as well I might, that my identification as a female was premature.”

In other words, if we require people to pick a gender and stick to it, we’re denying precisely what the transgender community is all about.

Now it’s true – or so I’m told – that girls develop a pretty accurate creep-detector at a very young age. But are we really prepared to convict someone on the basis of how the complainant felt herself being looked at? I should think not, and I should hope not. So people like me, with strong civil libertarian intuitions, are wont to dismiss the claim, made by the French bather or the ogled washroom patron, that they have a right not to be made to feel uncomfortable. We’re wont to say to them, “No you don’t!” We’re wont to say this as vehemently as I once said it to a female colleague who claimed to have a right not to be offended by anti-abortion posters on campus. “No,” I said, “you do not have a right not to be offended! A fortiori not in a university.”

But how far are we civil libertarians prepared to take this? All the way to public nudity, first on the beach, then on campus, and then in line at the post office? For the moment we say, “But not that far!”, we’ve pretty much handed the farm to our communitarian arch-enemies. Communitarians don’t deny there are individual human rights. They simply argue that among them is the right to belong, to belong to a community. And being a community involves a certain commonality of values, including that there’s behavior that doesn’t break anyone’s skin but is unacceptable nonetheless.

The problem arises when communities overlap, as they do when an American ‘libertine’ wants to flaunt her hair on a street in Tehran, or an Iraqi woman wants not to flaunt her body on a beach in France. The plight of the latter must be especially hurtful. She risked her life and those of her children crossing the Mediterranean to escape the dress code being enforced with whips on the streets of Mosul, only to be told to strip in front of her children on a beach in France.

What’s especially worrying in the burkini case is the invocation of the for-their-own-protection argument. Instead of protecting these women from being assaulted, the law would charge them with provoking the assault. But this is not unprecedented in Western jurisprudence. Shouting racial slurs which are likely to provoke violence can indeed be disturbing the peace. So once again we’re caught between a rock and a hard place.

Is there a principled way to resolve these issues? To come down on one side or the other? Probably, though not without a certain imprecision.

Under our system of law, all is permitted save what is prohibited, and nothing can be prohibited unless a) it’s demonstrably harmful and b) that harm outweighs the autonomous harmfulness of the prohibition. Under this test, in the case of the burkini issue I think the law is being an ass. And I’m assuming the supreme court in France will agree, if, by the time you read this, it hasn’t already. (Hey, just got the news. The French court just quashed the ban. Doncha just love it when you’re proven right like this?)

But the washroom issue isn’t quite so clear. Fortunately neither is it clear that there are no third options. We could make all washrooms unisex and replace all urinals with cubicles. Expensive, perhaps, but probably worth it. We spend a small fortune to accommodate people in wheelchairs. Surely we can spend an even smaller one so everyone can take a crap in peace.

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