Anxious Bodies

'Civil Rights Reform and the Body' by Tobias Barrington Wolff in 6 Harvard Law & Policy Review (2012) 201-231 argues that -

Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. Trans-gender people are among the most targeted populations in the United States, subject to widespread and sometimes violent mistreatment in places of public accommodation, the workplace, and the housing market. Gender-variant young people become homeless in vastly disproportionate numbers, facing hostility in foster care and sexual exploitation on the streets. Some states have enacted legislation prohibiting such discrimination and abuse, and the Obama Administration has taken steps to extend similar protections within the federal civilian workforce and in administrative programs like federally subsidized housing and veterans services. Nonetheless, a condition of threat and vulnerability remains the norm for many who depart from the gender expectations of those around them, and efforts to enact protections have become a priority in Lesbian, Gay, Bisexual, and Transgender (LGBT) advocacy.

Opponents of these civil rights reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom - who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom - as the reason to permit discrimination in the workplace, housing, and places of public accommodation. Antagonists brand proposed civil rights laws as “bathroom bills,” promoting fear of sexual assault and employing icons and imagery that raise the specter of invasive voyeurism, all in response to the suggestion that transgender people might be able to hold a job, rent an apartment, or use places of public accommodation with out discrimination. The tactic has proven effective. Proponents of reform in the 111th Congress identified their colleagues’ anxiety over gender-identity protections, and in particular the rhetoric of the bathroom, as a major reason they could not successfully advance a federal Employment Non-Discrimination Act, which would prohibit employment discrimination on the basis of both sexual orientation and gender identity. Similar battles in state legislatures have either been lost or rendered more difficult by anxiety over the bathroom. And the effect is not felt in the vote count alone. These political struggles impose yet more indignity upon transgender people, who find themselves reduced to a caricature of a bodily function when seeking the assistance of their government in enjoying the basic features of a safe and dignified existence.

When a single image or rhetorical device becomes so dominant in a public policy debate, it requires an analysis on two levels. One must interrogate the device on its own terms, examining the factual predicates underlying its claims. But one must also lift the device out of this narrow and oversimplified pocket of debate — the power of the device being its very capacity to flatten discussion — and place it within a historical and analytical context where its origins and meaning can be scrutinized.

The rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in many efforts at civil rights reform: anxiety over the body. The body can be a site of vulnerability and pain, shame and pleasure, excitement and embarrassment — human experiences that are often unmediated by rational thought and impervious to reasoned argument. When opponents of civil rights reform mobilize these primal forces in response to progressive efforts, they wield a potent tool for preserving existing arrangements of status and power.

This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in many efforts at civil rights reform: anxiety over the body. This Article makes a first attempt to identify and analyze the role that anxiety over the body can play in civil rights reform, using as its primary point of reference the obsessive focus on bathrooms that antagonists exhibit in seeking to justify discrimination on the basis of gender identity and expression. It begins by exploring the mode of subordination that characterizes much anti-LGBT discrimination: the wholesale erasure of the target population. Debates over gender-identity discrimination are regularly framed around an implicit invitation to negate transgender people entirely — to behave as though they can be conjured out of existence by establishing public policy that refuses to take them into account. The maneuver is persistent in disputes over LGBT equality and has been a regular feature of anti-gay advocacy. When deployed against transgender people, this aggressive form of erasure takes shape around anxiety over the body, for it is the trans-gender body itself that the antagonist wishes to erase. The bathroom obsession offers a prime example of this dynamic of erasure.

The Article then identifies some of the core anxieties of the body — fear of sexual predation and invasion; fear of pain and injury; and fear that the body will be exposed, with the attendant feelings of shame and loss of control that many people experience when their unclothed bodies are scrutinized — and analyzes resistance to civil rights reform around these themes. Anti-transgender discrimination implicates each of these core anxieties, coupled with the pervading insecurity over sexual or gender identity that is brought to the fore in some people when confronted with the reality of a transgender body. Past civil rights efforts have likewise provoked sharp reactions around these anxieties. The fight over the segregation of municipal swimming pools took shape around widely expressed fears of sexual predation by Black men toward White women, as well as unspoken anxieties about exposure of the body by some White men. Anxiety around physical injury and mutilation threw additional fuel on the long simmering battle over the segregation of railroad cars when travel by rail was still a new and dangerous technology, subjecting passengers to pervading physical peril. And purported fears over exposure of the body in barracks and showers played an outsized role in the resistance to the repeal of the military’s Don’t Ask, Don’t Tell (DADT) policy, under which lesbian, gay, and bisexual servicemembers had to lie about their identities as the price of their service. The Article examines these core anxieties of the body and analyzes the role that they have played in resistance to civil rights reform