In recent years, opponents of LGBTQ rights have effectively deployed “transgender bathroom panic” to defeat and repeal local ordinances that prohibit discrimination based on sexual orientation and gender identity. In Houston, for example, a local antidiscrimination ordinance was repealed after a commercial claimed that under the new law, “any man at any time could enter a woman’s bathroom simply by claiming to be a woman that day . . . even registered sex offenders,” while showing a man entering a stall occupied by a young girl.   In North Carolina, the state legislature not only repealed local antidiscrimination ordinances, but also affirmatively mandated the segregation of multi-user bathrooms and changing facilities based on “biological sex”—i.e., “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.”

The opposition’s rhetoric about transgender people echoes similar claims made about gay and lesbian people in an earlier era. Now, as then, it is exceptionally challenging for the LGBTQ movement to respond, without stoking deep-seated and widely held anxieties about sexuality, gender, and bathrooms. To date, LGBTQ organizations have sought to challenge this dynamic by claiming that it is based upon “misinformation” about gender identity and “myths” about transgender people.

The limitations of this paradigm are apparent. On the one hand, it fails to provide any definition of “gender identity,” any criteria for determining who are “transgender,” and thus, any way of deciding which bathroom a particular person should use. On the other hand, it fails to challenge the division between “male” and “female” bathrooms, and the binary between male and female gender identities. Rather than attacking the segregation of bathrooms, it insists that segregation should be based gender identity, instead of biological sex.

This essay argues that in the post-marriage era, LGBTQ organizations should pursue the passage of state and local laws that abolish sex segregation in all public restrooms. In the short-term, such policies could be limited to the desegregation of single-user restrooms. In the long-term, however, they should include all shared facilities—multi-user restrooms, but locker rooms, dressing rooms, and bathing facilities.

In particular, this essay emphasizes the short-term goal of passing legislation to abolish sex segregation in single-user restrooms. This project has two virtues: It marginalizes the opposition’s bathroom rhetoric, while vindicating one of critical theory’s most profound commitments. By focusing on single-user restrooms, the project would effectively neutralize the opposition’s fears about male sex offenders preying on girls in women’s restrooms. Yet by re-designating thousands of bathrooms as “all gender,” the project would visibly challenge the presumption that all human beings can be classified as “male” or “female.” It would allow millions of people the experience, in everyday life, of using the bathroom without sorting themselves (and others) by gender or sex.