Nancy Mace and Sarah McBride Present Us with an Important Opportunity

Maybe what we need is a sex-based reset

Last week, South Carolina Representative Nancy Mace made an announcement that many reacted to with horror. She proposed legislation that would force people on Capitol Hill to use bathrooms according to their sex, not their gender identity.

This was widely reported as a bathroom ban for trans women, and a bigoted and transphobic move—not just in more partisan outlets like The Washington Post, but in somewhat random outlets like the South China Morning Post, too. The term most commonly used to describe Mace’s legislation was “anti-trans”—though some on social media compared it to the stain of America’s Jim Crow laws.

While it’s true that Mace’s moves might be performative, and catering to her base—and perhaps even to hurt McBride’s pride—to dismiss it as bigotry is not an argument against it. It’s an ad-hominem attack, one that can be leveled at anyone with a different opinion—as any of us who’ve argued against the tenets of gender identity ideology know.

So if your take is that this bathroom bill is solely about bigotry, I invite you to stretch your mind and be curious: could there be any other reasons that someone might call for this division of common facilities? And even if Mace is a bigot—even if she actually hates all people who have medically or psychologically transitioned—clearly she realizes that her proposed legislation would garner support. Might there be call for good-faith consideration of it?

I’m going to argue yes, for a variety of reasons.

The first: reality. Sex is real, and immutable—no matter what someone does to his or her body or appearance, no one can change from male to female, or vice versa. Every human on this earth got here through the meeting of male and female parts. Every cell in our body is encoded with sex. If one accepts that a woman is an adult human female—and I do realize that many people, including a generation of schoolchildren and a Supreme Court Justice, do not—then a women’s room is for women, and Sarah McBride is a man. That’s right: a trans woman is a man—an adult human male who feels more comfortable in the stereotypical appearance and attire of women. Indeed, a trans woman is often beholden to such stereotypes.

You may think that sentence—McBride is a man—is unkind. But that doesn’t make it untrue. And, to share one of my favorite quotes: “It’s the truth I’m after, and the truth never harmed anyone. What harms us is to persist in self-deceit and ignorance.” (Thank you, Marcus Aurelius.) I do believe that we need to hold truth above all else, including, well, “inclusion.”

As philosophy professor Holly Lawford-Smith explains in Gender-Critical Feminism: “From a gender-critical perspective, there is no automatic right to inclusion, because these spaces are part of a package of political provisions designed to improve women’s participation in public life.” We created women’s-only spaces for women, to advance their interests, to rectify discrimination, to protect their needs. In fact, it took decades for female representatives to get a bathroom of their own anywhere near the House floor. We may need to create spaces for males who transition, for their interests and needs, too—but they do not automatically earn entry into women’s spaces by way of proclamation, identity, or even physical alterations to themselves.

Discrimination can refer to denying someone’s rights, but it can also refer to being choosy, to creating strong boundaries. Both Lawford-Smith’s book and Kara Dansky’s The Reckoning, as well as the important site Reduxx, are loaded with examples of how “inclusion” has led to the erosion of boundaries far beyond the bathroom. Which brings me to my next reason that Mace’s proposal is worthy of consideration: the slippery slope.

This isn’t my favorite argument, to be sure, but it has proven to be true that giving an inch on the definition of womanhood has led to the taking of many, many miles. As Lawford-Smith writes:

Or perhaps you’ll recall this image of what happens when we make sex into something subjective, rather than objective, and allow people to self-define as women:

I’ve spoken to some of the girls who raced Lia Thomas, the Ivy League swimmer above, who transitioned and then competed against women. Some of the girls in those locker rooms had been sexually assaulted at some point in their lives, and expected the locker room to be a haven from males. Suddenly, they were squeezing into their swimsuits in front a person with a penis, whom they were not only expected to accept as female, but pressured to not speak up about. Not only weren’t they consulted, they were barred from participating in discussion. This is happening all over the country, day after day: men and boys in women’s and girls’ spaces, the feelings of women and girls—of anyone who questions or dissents—dismissed as bigotry. Silenced.

New York City school board member Maud Maron successfully proposed revisiting a school policy on trans kids in sports, which would require consulting with coaches, female athletes, and others—not just activists. Said activists have shown up at school board meetings for months, to intimidate and silence those who supported the policy. The schools’ chancellor not only didn’t adopt Maron’s policy—the one activists are still objecting to!—but he illegally fired Maron. (She has since been reinstated, while the chancellor resigned after being investigated in connection with the larger scandal involving Mayor Eric Adams.)

Historically, we have divided facilities in this country by sex, for many reasons—some more relevant than others these days. Perhaps the tradition evolved from prudishness, from the insistence on women’s innocence, frailty, purity. Perhaps in service of safety. “It’s how things have always been done” is not in itself a good argument, but let me add to that, then, that the change to this tradition was imposed on American society in law and policy, without us being consulted. We were never asked.

On the few occasions when we—women, but also the general public—have been asked our feelings about dividing society by gender identity versus sex, our voices have been ignored. Take the case of public comment on changes to Title IX, which prevented discrimination based on gender identity—that is, which forced the accommodation of males in women’s and girls’ activities and facilities, in the name of not discriminating against LGBTQ+ students. Over 300,000 comments were registered, most of them against the changes. The Biden Administration went ahead with the changes anyway, privileging the desires of the few over the needs of the many.

These changes are authoritarian in nature. I realize that Mace’s legislation seems authoritarian, too, and that fighting authoritarianism with more of it isn’t a long-term solution. But one way to see forcing males to use male facilities is as a kind of sex-based reset. What if we return to the assumption that, when activities or accommodations are divided, it’s by sex, not gender identity—and also commit to coming up with a plan that considers reality, along with the dignity and needs of various stakeholders? What if we reset, and come up with better, fairer policies? What if we reset, and listen to gender-critical feminists, who’ve been talking about these issues for decades longer than any Republicans have?

In a classy move, McBride has agreed to focus on her work, not bathrooms, insisting that bathrooms matter less than what McBride will be there to do: serve the interests of the people of Delaware. But that’s not a long-term solution. And we do need one. Trans people aren’t going anywhere. They’re not entitled to impose their subjective realities onto the entire society and dismiss pushback as bigotry. But they deserve to live with dignity. Those making laws and policies need to consider their full humanity when doing so.

Plenty of women feel uncomfortable encountering a person they know to be male in the women’s room. Now that the far left has had its ass whipped, more women will feel free expressing that discomfort. Mace seems to realize that we can finally talk about the thing we’ve been told not to talk about. Let’s take her up on it.

The longer-term solution, I believe, does involve acceptance. It involves men accepting trans women not as variations of women, but as variations of men. Trans women need to be able to use men’s bathrooms without fear of violence or retribution, without being bullied by gender-normative men. Fellas, you need to open the stall door and let trans women in. You can no longer file accommodating them under women’s work.

This isn’t a perfect solution, or a long-term one. There really is such a thing as passing privilege, and I’m not saying that all trans women walking around in the world should use the men’s bathroom. But when someone is identifying as transgender, it means that they’re acknowledging that they identify outside of their sex class—it means they know that there’s a difference between how they think of themselves, and what they are. A sex-based policy gives the rest of us room to acknowledge what we know to be true, too. It gives us time to consider the needs of all people, not just trans people.

During that time, I hope that when Speaker Mike Johnson encounters McBride in the men’s room, he will indeed be welcoming and inclusive.