The most intense battle currently being fought in our ongoing culture war is the use of public rest rooms by transgender individuals. Various states have recently enacted or are considering laws requiring people to use only bathrooms that correspond to their biological sex. I argue here that there are striking parallels with our ill-advised anti-smoking laws, as in both instances there are large groups asserting incompatible, rights-based claims. And, in both matters the state has imposed its judgment rather than leave it to the marketplace to sort out.
Smokers enjoy their habit, and assert that they have the right to decide what to do with their own bodies. Moreover, they (correctly) observe that the evidence that ETS (“second hand smoke”) harms others is manifestly weak.[1] On the other hand, many non-smokers object to this exposure. Similarly, transgender persons desire to use the rest room of their choice, while others (primarily women) fear that this will increase voyeurism and harassment by males posing as transgender. However, there is no justification for the state taking sides in such disputes, as these interventions are not only unjust, but produce inferior outcomes even from a utilitarian perspective.
To start with what is obvious to libertarians, business offices, stores, restaurants, and all other commercial spaces are privately owned. The state has no greater authority to regulate this space than it does to dictate whether we smoke or how we use the bathroom in our own homes. Thus, as I write in my most recent book with respect to the question of ETS:
The state has no justification for regulating private property unless the owner is conducting or permitting some activity on it that harms innocent others. Smoking, when allowed by the owner, does not harm those who object to being exposed to ETS because they can shop at other stores, restrict their job search to smoke-free workplaces, and live in condos and apartments where smoking is prohibited. Thus, from the libertarian perspective, this case is closed.[2]
The same point holds for the gender-identity bathroom controversy. A biological male who identifies as a woman can patronize establishments that permit them to use the rest room of their choice; feature single stall, unisex bathrooms; or shop on the internet. By the same token, biological women have comparable options open to them. So, this case in plainly distinguishable from situations such as the Jim Crow South, where blacks were denied equal access to a wide range of important goods and services. Therefore, from a rights-based perspective, bathroom policy should be left to the property owner or their designee.
Although I will not defend this claim here, laissez faire solutions will also generally maximize utility.[3] As I also say in my book regarding the virtues of private sector decision-making with respect to ETS:
The obvious advantage of the laissez faire solution over an inflexible legislative one is that since potential customers and employees can “vote with their feet,” the profit motive should cause owners to carefully weigh these groups’ preferences (and their intensity), yielding close to the optimal mix of smoking and non-smoking establishments.[4]
Similarly, if this is left to the free market, businesses will tailor their restroom policies to the preferences of their customer base. Almost certainly, more people will be satisfied under this system than a “one size fits all” policy imposed by our legislatures and courts. As is so often the case, the best thing the government can do is nothing.
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[1] See the sources cited in Thomas A. Lambert, “The Case Against Smoking Bans,” Regulation (Winter 2006-2007), 38-40.
[2] Libertarian Philosophy in the Real World: The Politics of Natural Rights, p.73.
[3] See Libertarian Philosophy, pp. 9-10. What is distinctive about natural rights libertarianism, is that it upholds rights even if this involves substantial practical costs. Thus, we endorse the unfettered right to express “hate speech,” regardless of any potential net loss in utility. This is precisely what it means to have a “right” in the libertarian understanding of the concept.
[4] Libertarian Philosophy, p.73.
Government I thought was only granted certain powers in the Constitution. Even without the idea of rights I would think that it has no power except what was agreed upon by the States. And besides that I think that you are right that their power ought to be limited by reason of natural rights.
I agree. In fact, I write about the federalist nature of the constitution here. Sadly, the federalists have seemingly lost this battle, and the notion of natural rights is also out of favor.