How Do We Know Which Locker Room Is “Appropriate?”

The sign above is affixed to the locker room doors at Virginia’s Fairfax County Recreational Centers. I see it every time I go swimming. I just don’t know what it means.

In an earlier, more innocent age, it probably meant that the men’s locker room was for boys and men and the women’s locker room was for girls and women. That would seem to be the most straightforward explanation.

But that was so…then. And Fairfax County is one of the progressive enclaves of the National Capital Region. It’s where the “deep thinkers” that discover more genders than Baskin-Robbins has ice cream flavors go home to sleep.

Over in the next county (Loudon), the school board actually had a father arrested for raising a ruckus about the sexual abuse of his daughter by a “transgender” student in the wrong bathroom, abuse the school board covered up and the dad called out. That “domestic terrorist” was eventually pardoned by Governor Youngkin.  

Now, plenty of Fairfax County schools follow a similarly confused path on bathrooms and other more intimate facilities, so I’m not sure what the “appropriate” locker room is.

After all, in that earlier, more innocent age, what was “appropriate” was self-evident to everybody in a revealing setting like a locker room. But “self-evident” is sooooo Thomas Jefferson. Today, “appropriate” seems to be determined not by self-evidence but by personal declaration. “I am X; therefore, acknowledge it.” “I am a woman with a penis; non-discrimination requires you ‘affirm’ me.”

So, who determines the “appropriate” use of the Fairfax County recreational centers’ locker rooms? Is it self-evident? Or does it “depend” on the individual’s declaration and identification?

Now, let’s also consider the further implications of this question. If—dato non concesso —the “appropriate” locker room is determined by the individual’s self-assessment, then, in fact, that sign means nothing. It means nothing because (a) an external observer cannot know what is “appropriate” until he is told; and (b) that observer has no way of knowing whether that declaration is sincere or opportunistic, permanent or fluid (and how fluid). Any way you cut it, the sign on the door (and the principle behind it) is rendered nugatory.  

Virginia still has laws against indecent exposure. They make it a Class 1 misdemeanor to expose one’s “private parts…in any public place.” Is a public locker room of a county-owned facility a “public place” or a “private place”? Is there a critical element of “privacy” at stake when that facility is understood to be sex-segregated (e.g., that men’s visibility of their “private parts” in a men’s locker room among other men represents a qualitatively different context than the same visibility in a women’s locker room)? Or, again, is the act dependent completely on the identifying intention of the one whose “private parts” are exposed?

Virginia bans urination in public but not as a separate offense: public urination is chargeable under the “indecent exposure” statute. Its Code allows it in remote areas where no facilities are available, provided it is “not seen by the public and should take place at least 200 feet from any waterway or trail.” So, urinating in the bushes 150 feet off a Blue Ridge trail is illegal, but having male genitalia in a female-designated locker room in visual range is a problem only of the beholders, not the beholded?  

Let’s be honest: the ambiguity wreaked by gender confusion in fact makes the Fairfax County locker room signs vestigial, relics, because one conceivably cannot know which facility is appropriate for this person in advance of his/her/zher/faer (all pronouns of choice available for job applicants in the Harris-Walz campaign) self-declaration. The political party that brings you this confusion also claims itself to be robust defenders of the “rule of law.” But how can there be “rule of law” if the requirements of a rule or law first require the person it implicates—the person who has a direct stake in the outcome—to define the situation? In practice, such a rule is no “law” because its enforceability is unclear.   How can there be “rule of law” if the requirements of a rule or law first require the person it implicates—the person who has a direct stake in the outcome—to define the situation?Tweet This

But that’s not the half of it. While the rule may be unclear, it’s still on the books. It’s still, technically, a rule or a law, which means it is still enforceable. What that means, however, is that it is the potential object of selective enforcement, being wielded in particular cases as a cudgel against one’s opponents, not as an impartial norm against all who violate it. And even if the enforcement is eventually thrown out, the mere threat of selective enforcement serves to deter some people because others—similarly situated but ideologically (and, therefore, politically) protected—can immunize themselves against enforcement. What you have are the beginnings of a banana republic.

So, pace all those folks that insist we must “get past” the “bathroom wars” as the latest skirmish in the bigger “culture wars,” the truth is there are issues here besides whether some people feel “welcome” or “affirmed” in a given context. There are issues of others’ privacy, sexual reality, and the consistent rule of law from public regulations that once upon a time took sexual differentiation seriously. And—given both Biden-Harris positions and the policies pursued by Tim Walz in Minnesota—they are very much at stake in Election 2024.