It's not about the bathrooms

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Right Now

Last week Nancy Mace, a Republican representative from South Carolina introduced a bill that would ban trans “members, officers and employees of the House from using single-sex that correspond to their gender identity.” Mace introduced the bill days after Sarah McBride, the first openly transgender member of Congress, was elected as Delaware’s representative. When asked if she introduced the bill in direct response to Sarah McBride’s arrival, Mace said, “Yes and absolutely. And then some.” 

House Speaker Mike Johnson supported Mace, announcing a policy banning transgender people from Capitol restrooms that align with their gender identity. Mace kept chasing the restroom rush, she introduced a bill that would extend her proposed ban to all federal facilities. If Mace’s federal bill passes, it will apply to D.C. public schools since they are federal facilities. 

Trans women are not more likely than cis women to hurt other women. But studies show that transgender children are at a greater risk of sexual assault in schools that restrict them from using restrooms and locker rooms that align with their identity. 

Unbothered by reality, Mace posted a girlbosscore video of herself striding down a hallway, while claiming she will, “fight like hell for every woman and every little girl across this country to protect you and keep you safe.” Bold words from a woman who voted against the reauthorization of the Violence Against Women Women Act. The NRA instructed Republicans to vote against the VAWA because a provision barred convicted abusers from purchasing guns.

Girl bosses are always hustling. So Mace also launched bathroom themed merch - a $35 t-shirt with “COME AND TAKE IT” printed beneath a women’s restroom pictograph. It’s quite a cultural artifact. That woman’s restroom pictograph was commissioned in the 1970s by the US Department of Transportation, a part of the administrative state Trump and Vance want to dismantle. 

When Johnson announced the anti-transgender bathroom policy, he ended his statement with the solemn declaration, “Women deserve women’s only spaces.” Of course, if a trans woman is in a women's restroom, it is a women-only space. But it is also important to note that Johnson’s conviction only applies to select spaces in the public sphere.

Johnson insists the home should not be a women-only space, especially if those women are in love with each other. In a particularly unhinged op ed, Johnson wrote that “homosexual marriage is the dark harbinger of chaos.” (And yes, I am thinking of legally changing my name to Meg, The Dark Harbinger of Chaos for completely unrelated reasons.)

Thus - for the sake of their children, or the redemption of their husbands - wives have traditionally been urged to renounce their personal liberty.

Elizabeth Peck, Domestic Tyranny: The Making of American Social Policy against Family Violence from Colonial Times to the Present

In the private sphere, Johnson does not think that women deserve the liberty to leave spaces shared with men. Like JD Vance, Johnson wants to ban no-fault divorce. No-fault divorce is one of the greatest protections available to American women. It allows abused women to leave marriages without going through the dangerous process of proving fault. This saves lives. After states enacted no-fault divorce, there was a 30% decrease in domestic violence, a 10% drop in women murdered by their partners, and a total female suicide decline by around 20%. 

It’s a very convenient time for an ambitious Republican to have a media-monopolizing meltdown. It became clear that Trump did not win a popular-vote majority just as the public begins to react in his Cabinet of Sex Pests. So, yes! Mace’s transphobic tantrum is absolutely a cruel cynical stunt. But it’s not only a cruel cynical stunt. 

Republicans use anti-transgender legislation as scaffolding for their project of reinforcing the separate spheres. Mace’s bills and Johnson’s policy are evidence Republicans are accelerating their efforts to reinstate an architecture of legalized domestic tyranny. 

What Came Before Right Now

Nancy Mace named her anti-trans federal bill the Protecting Women’s Private Spaces Act. It’s an interesting name! Because it admits her bill is seeking to protect the space, not the people within it. This is actually logically consistent! Women-only private spaces were not built to protect women, they were built to extend men’s dominion over women into the public sphere.

Anne Brown, Daughter of John Brown | 1880s

"Men have been taught they are absolute monarchs in their families…Women are taught that their only hope of heaven is to 'endure to the end,' That it is a religious duty to 'submit themselves to their husbands in all things.'

I know a man who tells his wife 'I own you, I have got a deed (marriage license and certificate) to you and got it recorded, I have a right to do what I please to you.'

And the law of a Christian land says she shall submit to indecencies that would make a respectable devil blush for shame. Man, who is said to have been created in the image of God, is the lowest animal in the world, and the most cruel.

It shatters my faith in the goodness of God, so much that it makes me tremble for my own reason at times.

I do not envy St. Paul the eternal privilege of hearing the agonizing cry that is wrung from the hearts of so many wretched women,

'How long oh Lord must I endure all this,' 'Wives obey your husbands!' 'Servants obey your masters!'

I wonder if he is proud of his work today?"

By the early-19th century, the myth of the separate spheres was embedded in American culture and code. Women were restricted to the private sphere. It was illegal for women to vote. They could not pursue higher education. A marriage certificate was a document of disempowerment. Married women could not initiate a divorce, own property, claim rights to their own wages, or their own children and they could not enter in contracts.

Men could move between the private and public sphere. They had rights in both spheres. According to the law, men had dominion over the private sphere. The law turned women into subjects and men - yes, all men - into domestic tyrants. Some tyrants were not brutes. But many were. 

America’s  industrial economy created new spaces for women to exist. They worked in factories, shopped in department stores and even…shudder…existed in libraries.  This was a problem because those spaces were in public. How would women remember they were the subjects of men if they were just like…not in the house? The answer was simple! Build private sphere pocket dimensions called women-only spaces into public spaces! 

Women-only rooms became the norm in libraries, banks, hotels and department stores. But it was more difficult to install the private sphere into factories. The separation had to be built into the architecture somehow. How? Well…what about the restrooms?!

The separate spheres are not just misogynistic constructions, they are also white supremacist constructions.

The first law requiring businesses to have sex-segregated restrooms was published in 1887 in Massachusetts. Restrooms were single-user because the technology for effective multi-stall restrooms didn’t really exist. Each single-user water closet had to be designated as a woman’s toilet or man’s toilet. A woman’s water closet was in the private sphere. The man’s toilet was in the public sphere. People violating the 1887 law could be fined up to $100, or about $3200. 

Let me tell you about another late-19th century Massachusetts law. Wife beating was a crime, but wife beaters were rarely prosecuted. Women who left abusive husbands were often killed by them. When they were not killed, they lost custody of their children. Women who left often became destitute. Feminists like Lucy Stone tried to pass legislation to protect women from wife beaters:

In 1879, Lucy Stone lent her support to a bill in the Massachusetts legislature to protect a wife whose husband had been convicted of criminally assaulting her. The proposed law gave an assaulted wife the right to apply a neighborhood police court for legal separation, an order requiring her husband to pay support for her and her children, and the award of child custody. Three times Stone introduced this legislation - in 1879, 1883, and 1891 - and three times it failed.  

Elizabeth Peck, Domestic Tyranny: The Making of American Social Policy against Family Violence from Colonial Times to the Present

Stone’s protection bill was radical because it was not concerned with punishing the abuser, it was concerned with protecting the victim. It moved the victims of domestic abuse from the private sphere to the public sphere, where she was given the right to protection. But how could the State protect a woman from her abuser if the State acknowledged he had authority over her? 

Also, the legislators huffed, the protection law made it too easy to obtain a legal separation. If being the victim of abuse was all that was required for separation, then a lot of women would leave their husbands! A woman who had the right to leave a wife beater was a harbinger of dark chaos. 

This bill that was absolutely concerned with protecting women from aggressor in their private spaces failed again and again during the same years restrooms were sex-segregated. Women shopped in private spaces, pissed in private spaces and were killed in private spaces. 

We Are All Bound Up Together, Frances Ellen Watkins Harper | 1866

"I do not believe that giving the woman the ballot is immediately going to cure all the ills of life. I do not believe that white women are dewdrops just exhaled from the skies. I think that like men they may be divided into three classes, the good, the bad, and the indifferent.

The good would vote according to their convictions and principles; the bad, as dictated by prejudice or malice; and the indifferent will vote on the strongest side of the question, with the winning party.

You white women speak here of rights. I speak of wrongs. I, as a colored woman, have had in this country an education which has made me feel as if I were in the situation of Ishmael, my hand against every man, and every man’s hand against me."

It’s crucial to remember that the separate spheres are not just misogynistic constructions, they are also white supremacist constructions. In the North, the private home with the private wife relied heavily on the underpaid production and care work of Black people. Not all people were citizens. Black men could not vote. In the South, the entire gosh damn economy depended on the forced labor of Black people. Sexual violence against an enslaved woman was not a crime. 

In both the North and South, the separate spheres gave White women authority over the people who labored in their homes. Many White women exercised unholy dominion in order develop and reinforce soft power within their sphere.

Because women typically inherited more slaves than land, enslaved people were often their primary source of wealth. Not only did white women often refuse to cede ownership of their slaves to their husbands, they employed management techniques that were as effective and brutal as those used by slave-owning men. White women actively participated in the slave market, profited from it, and used it for economic and social empowerment. 

They Were Her Property by Stephanie E. Jones-Rogers

The Republicans attack transgender people because their very existence proves binaries that define the separate spheres are constructions. People who crossed the boundaries established by the separate spheres - especially the gender boundaries - threatened to expose the weaknesses of White dominance and White soft power.

That’s a problem for someone like Nancy Mace, because she’s developed soft power by investing in the construction of the separate spheres.  She doesn't want to lose the power to dominate And that’s a problem for someone like House Speaker Mike Johnson, because he claims all his authority from those spheres. He doesn’t want to give it up. He really, really wants to get everything sticky with his dominion. 

The Possible Future

In the 19th century, the doctrines of the separate spheres were reinforced by culture, architecture and legislation. We live in a different time.

The right to vote isn't only extended to white men. Women have been able to have credit cards in their own name since the 1970s! We understand that gender is an expression of identity, and that identity is a sense of self that is always being generated through the vast network that composes each individual's context. Scientific research has established that biological sex exists along a spectrum.

Republican predilections aside, most people do not talk to strangers about their genitals! So there is no non-invasive way to know whether a person's "biological sex" is Republicanly aligned with the pictogram on a restroom door.

So it is not surprising that lots of commentators are responding to Mace and Johnson by pointing out they cannot enforce anti-trans restroom bans. They cannot enforce it for the 10,375 stafffers working for the House. They certainly cannot enforce it for the nearly 5 million people working for the federal government. The argument seems to be that this is a short-term threat that will sputter out eventually.

First of all - at an individual level, most things in life are short-term threats. Mostly because we are not vampires. So a short-term threat that would be reason enough to throw our bodies between the Republicans and the trans people they want to victimize. Second of all - I do not think these commentators understand what is happening here.

The fact that Republicans have no way to enforce the anti-trans restroom ban is actually the point of the ban!

Panics are often manufactured so that issues with enforcement can justify building out an infrastructure of oppression.

If Mace's bills pass, Republicans will be tasked with using data surveillance to build out systems of sex verification and single-sex space enforcement. The documentation produced by these systems will be used to validate the separate spheres. Slowly, but so surely, Separate Sphere Infrastructure will be distributed through every aspect of our lives.

So What's Next?

I hardly know! But I do have a a few little thoughts.

The anti-trans crusade victimizes trans people, but its rhetoric centers cis White women. And so it can be difficult to respond to the Right's anti-trans argument, point by point, without centering cis White women too. I've read article after article that fails to really consider the impact a reconstruction of the separate spheres would have on trans people, Indigenous People, Black people, queer people, disabled people, poor people and children.

This is exactly what the Right wants. They know that liberation movements fail when they defend one group at the expense of others. If your work for women's rights is not ultimately working for the rights of all marginalized people, it is not liberation work. It's power seeking.

The Right is trying to manufacture a SCOTUS case that considers whether the Federal government has the right to issue federal anti-trans laws. They wouldn't have to win the case, they'd just need an opinion that made the spheres seem a bit more realistic. How many different cases about gender and the private sphere would they need to argue before they'd fully rendered an architecture of legalized domestic tyranny? Not as many as we'd like to think.

Combine this with the Democrat's emerging narrative about the "problem" of identity politics and, you know...yeah, that's all very upsetting! And I am very worried about it!

But we've got to remember we get to world-build too. We can protect one another. We can put our bodies between trans people and harm. We can declare over and over again - with words and actions - that there is only one sphere and we are all in it together.

We are all bound up together in one great bundle of humanity, and society cannot trample on the weakest and feeblest of its members without receiving the curse in its own soul. 

Frances Ellen Watkins Harper | 1866

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