Tag Archives: foucault

Bathroom Bills and the Panopticon

One of the most prescient elements of George Orwell’s dystopian Nineteen Eighty-Four is the ubiquity of surveillance—rather, of the possibility of surveillance. No one in Orwell’s novel is certain whether they are being observed through telescreens at any given moment, and thus they conform themselves to social expectations even in their private lives.[1] Indeed, the constant possibility of surveillance leads citizens to constantly surveil one another, effectively doing the authority’s job for them and internalizing the authority’s values. This is ultimate ideological victory. Permanent visibility becomes a form of power and control, what Foucault called “panopticism;” telescreens functioning as the panopticon.[2]

The recent passing of the “Public Facilities Privacy and Security Act,” more broadly known as the “Bathroom Bill,” in North Carolina is intended by its supporters to protect the safety and privacy of users of public restrooms. The law

directs all public schools, government agencies and public college campuses to require that multiple-occupancy bathrooms and changing facilities, such as locker rooms, be designated for use only by people based on their “biological sex” stated on their birth certificate. Transgender people can use the bathrooms and changing facilities that correspond to their gender identity only if they get the biological sex on their birth certificate changed.[3]

This is only one example of such laws, which are appearing in increasing number in recent months. Supporters of the law see this is a commonsense protection, for young girls in particular. Many clarify that they are not worried about transgender women attacking cisgender women,[4] but about cis men taking advantage of trans-inclusive policies to gain access to bathrooms or changing rooms for the purposes of viewing or assaulting women. While I find this scenario implausible,[5] my primary objections to this law pertain rather to enforcement and surveillance.

If someone suspects that I am a trans man (many trans men indeed appear more masculine than I do), and thus that I am in the “wrong” bathroom, what is their recourse? Presumably to contact management of the establishment who will contact either police or their own security. What is my recourse? Even if I have state-issued ID on me, this does not settle the matter legally, as the law explicitly refers to birth certificates. I do not carry my birth certificate with me, and of course many trans people have ID that does not match their birth certificates. (In any event, a law that requires a person to have identification in order to use the bathroom is inherently classist and draconian.) Indeed, video emerged on Facebook in December 2015 of a biologically female woman being physically ejected from a restaurant bathroom because she didn’t seem feminine enough to security, despite a small crowd of women attesting to their mistake. In this absurd encounter, male security forces attempt to protect the privacy and security of a woman’s space but are themselves the ones violating it.[6]

And this is one of the central problems with these kinds of laws. Supporters wish to make spaces safer, but in fact establish a virtual panopticon, as the public surveils and polices each individual of the public to ensure that they are performing their gender well enough. Moreover, this applies to both cis and trans individuals. Trans people who “pass”—that is, are not generally perceived to be transgender—are effectively immune to such laws. (See, for example, the top submissions to the “Transpassing” subreddit, many of whom are likely to remain unaffected by these laws one way or the other.)[7] Trans people who do not pass, as well as cis people whose appearance or behavior calls attention, are at the mercy of public scrutiny.

These laws thus reinforce strict gender roles—not only the gender essentialism that believes a person’s chromosomes (or genitals, or internal reproductive organs, etc.) dictate their gender, but also the expectations that society has for men as such and women as such. These laws contribute to the social atmosphere in which all people, whether gay, bisexual, straight, cis or trans, are constantly having their gender performance observed and judged, and add a penalty for failure to conform. Bathrooms—one of the most common and necessary public utilities—thus function precisely as Orwell’s telescreens: sites of surveillance, mechanisms that discipline us through daily scrutiny into internalizing a particular account of what it means to be man or woman.

                [1] “There was of course no way of knowing whether you were being watched at any given moment… you had to live…in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinised.”

                [2] Michel Foucault, Discipline and Punish: The Birth of the Prison, 1975.

                [3] Avianne Tan, “North Carolina’s Controversial  ‘Anti-LGBT’ Bill Explained,” ABC News, 24 March, 2016, http://abcnews.go.com/US/north-carolinas-controversial-anti-lgbt-bill-explained/story?id=37898153.

                [4] The term “cisgender” was recently added  to the Merriam-Webster dictionary. For definition, see http://www.merriam-webster.com/words-at-play/cisgender-meaning.

                [5] Most sexual assault is not perpetuated by strangers, but by relatives and acquaintances. Those few who do assault strangers in public rely on stealth and moments of isolation and opportunity—in which law becomes irrelevant—rather than drawing attention to themselves, as any masculine-presenting person entering a women’s bathroom or changing room does, whether they wish to or not. As many detractors of these laws have already pointed out, trans people (and I suppose this would include cis men imitating trans people?) are far more at risk in public spaces as it is.

                [6] Matthew Tharrett, “Aggressive Cop Forces Gay Woman Out Of Ladies Room For Not Having ID,” New Now Next, 20 April, 2016, http://www.newnownext.com/aggressive-cop-forces-gay-woman-out-of-womens-bathroom-for-not-having-id/04/2016/.

                [7] The issue of “passing” and its desirability or not in the trans community is highly individual and politically charged. For discussion, see Chris Godfrey, “Transgender Men and Women Discuss the Politics of ‘Passing,’” Vice, 25 March, 2015, http://www.vice.com/read/ passing-when-youre-transgender as well as Princess Harmony Rodriguez, “5 Ways to Support Trans People who Don’t ‘Pass’ for Cis,” Black Girl Dangerous, 6 August, 2015, http://www.blackgirldangerous.org/2015/08/5-ways-to-support-trans-people-who-dont-pass-for-cis/.

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