On Transgender Restrooms and All Similar Matters, Let Property Owners Decide

Annie Smith stands at the door of a gender neutral restroom at the University of Vermont in Burlington, Vt., Thursday, Aug. 23, 2007. (AP Photo/Toby Talbot)

As a people, we seem largely incapable of allowing each other to live according to our individually chosen values. When Jim Crow laws dictated segregation in the last century, it wasn’t enough to merely repeal those laws. We had to err in the other direction. We had to dictate integration. From that era rose the modern concept of “public accommodation,” an insidious claim against the property and association rights of others.


When you open a business, the theory goes, you yield your authority over the venue where it is housed. You must, under the force of law, do business with people you may not want to do business with, and on terms that you may not agree to. Why? Because discrimination is bad.

But is it? Discrimination is choice. That’s it. When you choose between this thing and that, you discriminate. When you choose where to live, whom to love, how to earn a living, what to believe, you discriminate against the alternatives. How is that bad? More to the point, what right does anyone else have to tell you what choices you should make?

Many in today’s culture claim that there exists some mystical distinction between discrimination in personal affairs, such as whom you marry or where you live, and matters of “public accommodation.” Somehow, and no one has been able to rationally articulate how, you lose the right to choose when you offer products and services to the public.

Brenda, a caller to a local radio show where I recently sat as guest, put it this way:

Consumers have the right to participate in the market. You do not have the right to deny them access to the market… [All people] have the right to purchase goods and services that are offered on the free and open market.

Let’s think that through. What does it mean to “participate in the market”? Rationally, it means to engage in consensual trade with others. Consensual. If either party to the transaction does not consent, then it is not a trade. It is a heist. But that’s not Brenda’s position. She believes that “the right to participate in the market” is a magic permit to circumvent the consent of others. “You do not have the right to deny [others] assess to the market,” she claims, and must therefore engage in commerce that you do not consent to. You are, in her view, a slave.


Odd how we’ve come full circle on that point, isn’t it? We began enslaving blacks at the nation’s birth. We then moved to merely compelling segregation through law. Recently, we’ve “fixed” things by embracing a new form of slavery.

How about we give freedom a shot? What harm is there in letting people decide for themselves which relationships they consent to? More to the point, how dare we force relationships upon others. From where do we claim the moral authority to tell someone else who they must do business with, or on what terms?

It is vital to recognize that violations of consent are bipartisan. The current controversy over transgender restroom policies demonstrates this. On the one hand, you have advocates of so-called “transgender rights” arguing that people should be forced to let transgendered people use whatever restroom they want. On the other hand, you have a number of efforts in states throughout the union to ban people from using any restroom other than that designated for their biological gender. Again, no matter our opinion on gender, we seem largely incapable of allowing each other to live according to our individually chosen values. Why not simply let property owners, be they individual or corporate, craft their own polices?

Riah Roe, a transgender civil rights commissioner from Minneapolis, offered an explanation in testimony to a legislative committee considering a bill restricting restroom use. From the Minneapolis Star Tribune:


…[testifying] that when she was in college, a security guard refused her access to the women’s restroom at a restaurant “because they were cracking down on that sort of thing.”

“My human right to access public accommodation had been suspended, taken into the hands of a person who may very likely wish that my kind of human didn’t exist,” Roe said.

Here again, we see reference to the “right to access public accommodation,” which in practice means the ability to violate the consent of others. This is considered a sacred endowment by many in our culture, if not most. Americans now largely believe that relationships should be forced on others, if those others think the wrong things. We have thus, in essence, criminalized thought.

But they are nasty thoughts, it is argued. So that makes it okay. As Brenda put it, “It’s [properly] illegal to be a bigot.” You should not be allowed to think certain thoughts and live your life accordingly, it is believed.

Lost in the concept of “public accommodation” is the value of liberty. Freedom of speech means nothing if it only applies when things said do not offend. Freedom of association means nothing if we cannot choose for ourselves with whom we associate and on what terms.

My father is black. My mother is white. A single decade before I was born, it was illegal in many states for the two of them to marry. That was a violation of their right to freely associate. So too are current laws compelling association. It is no more moral to force support for my parent’s marriage than it was to keep them from getting married.


As both the product of and a partner in interracial marriage, I understand the implications of my position on “public accommodation.” I understand that, under the condition of liberty, our desired venue could have refused to hold our wedding. Restaurants could turn our family away at the door. The previous owner of our home could have refused to sell to us. I get that.

So what? Honestly. How long do you think such barriers could hold under a truly free market? Why do you think they had to pass Jim Crow laws? They passed those laws in the pre-1960s south because, even back then, you could not sustain segregation when people were left free to make their own choices. Forgoing the question of whether refusing access to a restroom is somehow bigoted, the argument to decriminalize bigotry is not an argument for bigotry. Under a condition of liberty, ideas survive and thrive on their merits. Beyond recognizing fundamental human rights, liberty shines a cleansing light on bad ideas. Bigotry, to the extent it actually exists, will be stamped out by reason, not bureaucracy.

Besides, don’t you want to know who would refuse you service for an irrational reason? What satisfaction is derived from forcing yourself on an unwilling vendor? Why would you want them to have your money?

Bigotry proves detestable in all its forms. But there is something which rates far worse — violations of actual rights. Someone hating me for an irrational reason deprives me of nothing to which I am entitled. The only thing that can truly deprive me is a use of force. Whether the law bans associations, as it did under Jim Crow, or compels associations, as it does today, it uses force to deprive human beings of their fundamental rights. We should abide neither.




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