Flushing Justice Down the Tubes
There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex. -Attorney General Loretta Lynch
No student should ever have to go through the experience of feeling unwelcome at school or on a college campus. -Secretary of Education John King, Jr.
Fairly soon, public schools, colleges, and universities will have to allow transgendered access to gender-specific restrooms or be denied federal funding. This move is an egalitarian attempt to remove discrimination from schools. Yet, by allowing transgender students “equal access” to restrooms, schools must discriminate against students who do not want to be exposed in front of the opposite sex. Students who want privacy will feel unwelcome at schools and college campuses. Parents and legal guardians who want their children safe from such exposure will face discrimination. In addition, this decree still allows discrimination against non-transgendered boys from using the girls’ room and vice versa. Despite the kind intentions of the Obama administration, discrimination is going to happen at restrooms. What the administration should be asking is what discrimination is right, just, and fair.
Aristotle’s formal principle of justice applies in this case. His formal principle of justice states, “Treat equals equally. Treat unequals unequally.” Injustice occurs whenever someone who is equal to someone else is treated differently than that someone else. Injustice also occurs when someone who is different than someone else is treated the same. Transgendered males are not the same as biological females. Biological males are not the same as transgendered females. Thus, it may not be just when transgendered females are treated like biological males. Injustice may also happen when transgendered males are treated like biological females. Just because someone mentally identifies as the opposite sex does not mean that person is the opposite sex. Judging by the formal principle of justice, transgendered access to restrooms of the opposite sex may be unjust. Relevant material principles of justice will help to determine what is just in this matter.
The criteria for just discrimination must be relevant to the situation at hand. In most situations, it is unjust to discriminate based on age, sex, race, beauty, wealth, power, and social position; however, there are situations in which it is just to discriminate based on those things. Age is a relevant criteria for Social Security retirement benefits and membership with AARP. Beauty is a relevant criteria for the Miss America Pageant. Is biological sex a relevant criteria for restroom discrimination? Is gender-identity a relevant criteria? Perhaps modern theories of justice will help.
According to the end-result theory of justice, the only relevant criteria for just “equal access” is if the compulsory equality is to everyone’s advantage. If discrimination against those who desire restroom privacy benefits society as a whole, it is just. However, the chaos generated by mandated transgender restroom equality does not seem to benefit society at all. It only seems to benefit people who are confused about their identity. In addition, the continued existence of men’s and women’s restrooms assumes that discriminating based on biological sex benefits society as a whole. If compulsory egalitarianism for restrooms is good for everybody, should not the government make all restrooms unisex? The end-result theory of justice does not help the cause of the transgendered.
The historical-thinking theory of justice also fails to support the cause of equal transgendered access. Present and past context serve to help determine whether discrimination is just. The relevant past context of the United States is its Judeo-Christian moral grounding (this is not to say that the US was ever a “Christian nation,” but only a recognition that its moral foundations were based on the Christian tradition), which made a biological distinction between male and female. Anyone who was confused on that matter was considered insane or perverse. Past context also provides statistics of rape and sexual abuse in restrooms, generating fear of further offenses in the present. In the present context, the society of the United States adheres to a Post-Christian relativistic morality. What seems right today, may be a terrible evil tomorrow. In spite of society’s moral relativism, the State still has laws in place adhering to the old morality. In order for equal transgendered restroom access to be just, the past context of moral absolutes would have to be deemed wrong, and moral relativism right; yet, for relativism to call anything wrong is an admission that relativism is self-referentially absurd.
The Aristotelian, end-result, and historical-thinking theories of justice all judge the decree to allow transgendered access to gender-specific restrooms unjust. It is not right, just, or fair to treat unequals as equals, to consider chaos a benefit to society, and to make a morally relativistic whim an absolute decree.