2.1. The significant harms to trans people caused by bathroom bills

We have good reason to believe that bathroom bills cause, or contribute to, several types of harms for trans people. First, as I will explain in this and the next paragraph, both anecdotal evidence and empirical data shows that trans people forced to use a bathroom that doesn’t match their gender presentation are often assaulted.Footnote ¹⁷ Anecdotally, trans men who are forced to use women’s bathrooms have sometimes been physically assaulted. For instance, in July 2022 in Ohio, a campsite owner required a trans man to use the women’s bathroom rather than the men’s bathroom at his campsite. The trans man complied with this request. But when he used the women’s bathroom, other campers beat him because they didn’t think a man should be using the women’s bathroom; there have been several other similar documented attacks on trans men in women’s bathrooms.Footnote ¹⁸ Many trans women report being sexually assaulted in men’s bathrooms.Footnote ¹⁹ And this is not surprising: we should not be surprised that very feminine looking trans women, and other trans feminine non-binary people, such as the many young trans women who are assumed to be cis women by most strangers, are sometimes sexually assaulted when they are forced to use men’s bathrooms. Just as many cis men incorrectly believe that women wearing short skirts are sexually available or looking for a sexual encounter,Footnote ²⁰ some cis men will incorrectly believe that women who seem to choose to use a men’s bathroom are sexually available or looking for a sexual encounter.

Murchison et al. (Reference Murchison, Agenor, Reisner and Watson2019) compared the rate of sexual assault reported by trans and non-binary youth in schools that had a bathroom bill or something like it in place—that is, in schools which forbid trans people from using bathrooms that match their gender identity—to the rate of sexual assault reported by trans and non-binary youth in schools without such requirements. They surveyed 3,673 trans and non-binary 13–17-year-olds. This is the largest sample of trans and non-binary youth ever used and included trans and non-binary youth in every US state.Footnote ²¹ They found that whether a school had adopted such restrictions had a statistically significant effect on the rate of sexual assault that trans and non-binary people faced in single-gender spaces in those schools. Overall, 36 percent of trans and non-binary youth who were restricted from using bathrooms that matched their gender identity reported being sexually assaulted in the previous year. In comparison, 24 percent of trans and non-binary youth who were not restricted from using bathrooms that matched their gender identity reported being sexually assaulted in the previous year. Murchison et al.’s findings regarding trans girls are even more concerning. While 15 percent of trans girls who were able to use the girls’ bathrooms reported being sexually assaulted in the previous 12 months, 38 percent of trans girls who were forbidden from using the girls’ bathrooms reported being sexually assaulted in the previous year.Footnote ²² Murchison et al found that, in their sample, the risk of a trans girl being sexually assaulted in a single-gender space was 149 percent higher if she was forbidden from using the girls’ bathrooms.Footnote ²³

Other surveys have also found that trans people face harms in bathrooms. For instance, Weinhardt et al. (Reference Weinhardt, Stevens, Xie, Wesp, John and Ap2017) conducted a study of trans youth; only 16 percent of their sample were always able to use bathrooms that matched their gender identity. Of the young trans and non-binary people that Weinhardt et al. surveyed 46 percent had experienced problems in public bathrooms and 56 percent felt unsafe in public bathrooms.Footnote ²⁴ There is a lack of further data on the harms in bathrooms that bathroom bills cause, but the evidence so far gives us good reason to believe that bathroom bills cause harm to trans people in bathrooms.

If you (reasonably) fear that using the public bathroom that you are required to use will lead to you being assaulted or harassed, one natural and reasonable response is to avoid using public bathrooms when you are in public. Many trans people do exactly this: they avoid using public bathrooms due to fears of being attacked in them. However, avoiding public bathrooms when you are in public can lead to health problems such as urinary tract infections, kidney stones, bladder infections, cystitis, and severe dehydration.Footnote ²⁵ Many trans people already experience health problems like these as a result of avoiding public bathrooms. For instance, 32 percent of the 27,715 trans respondents in the US transgender survey reported avoiding drinking or eating in order to avoid using public bathrooms in the previous year and 8 percent of respondents—over 2,200 respondents—reported that their avoiding a public bathroom in the previous year had led them to develop a urinary tract infection or a kidney-related problem.Footnote ²⁶

So trans people who avoid the increased risk of harms in bathrooms that bathroom bills present by avoiding bathrooms when in public are subject to other harms, namely a significant risk of health problems; this will be important in Section 3. At this stage I am not making an argument about the normative significance of these harms; I will move onto that in Section 3. First, it is also important to the argument that I will make in Section 3 about the normative significance of these harms that we have reason to believe that bathroom bills do not avert significant harms.

2.2. No significant harms averted by bathroom bills

Some, such as Lawford-Smith (Reference Lawford-Smith2022, 104) and Stock (Reference Stock2021, 105–6), believe that trans women present a danger to cis women in women’s bathrooms and that, consequently, bathroom bills avert harm to women in women’s bathrooms by stopping trans women from using women’s bathrooms. However, we have no reason to believe that trans women present a danger to cis women in women’s bathrooms.

Barnett, Nesbit, and Sorrentino (Reference Barnett, Nesbit and Sorrentino2018, 235) conducted a search of databases to find reported cases of people assigned male at birth acting in a threatening manner, assaulting, or committing sex crimes (including voyeurism) against cis women in women-only spaces. They searched legal databases and Google for cases between 2003 and 2018, going through all cases listed on right-wing websites and blogs and finding cases from across the world. They found cases of people assigned male at birth presenting a danger to women in women’s bathrooms. But they found no reported cases of trans women harming or being a danger to cis women in women’s bathrooms across the world between 2003 and 2018. In her two books, Lawford-Smith gives no evidence that trans women have harmed women in bathrooms. And the only evidence Stock (Reference Stock2021, 106) gives concerns one case of a trans girl harming a cis girl in a bathroom from 2019. But that one trans girl harmed a cis girl in women’s bathrooms doesn’t show that trans women in general are a danger to cis women in women’s bathrooms. (Similarly, the fact that one British cis woman neonatal nurse murdered babies in her careFootnote ²⁷ doesn’t show that British cis women neonatal nurses are a danger to babies in their care.)

Many believe that bathroom bills make it more difficult for male predators pretending to be women to gain access to women’s bathrooms.Footnote ²⁸ However, we lack reason to believe that bathroom bills reduce the risk of cis men sexual predators gaining access to women’s bathrooms. Hasenbush et al. (Reference Hasenbush, Flores and Herman2019, 78) assessed whether localities in the United States that permitted trans women to use women’s bathrooms had found an uptick in privacy and safety concerns in women’s bathrooms after enacting such policies. They found no evidence of such an uptick. Similarly, Maza and Brinker (Reference Maza and Brinker2014) talked to police departments in 12 different US states where ordinances had been adopted permitting trans women to use women’s bathrooms. They asked the police departments whether these ordinances had resulted in an increase in safety or privacy concerns in women’s bathrooms. All 12 police departments said that they had not seen any such increase.

Furthermore, 30 countries, including Ireland, Norway, Portugal, and Spain, permit anyone who self-identifies as a woman to use women’s bathrooms.Footnote ²⁹ There is no evidence that any of these countries have found an increase in harm to women in women’s bathrooms since adopting and implementing these laws.Footnote ³⁰ So we lack reason to believe that bathroom bills deter sexual predators from entering women’s bathrooms to commit crimes. Although (a) we have reason to believe that bathroom bills cause harm to trans people, it seems that (b) bathroom bills do not avert harm to anyone.Footnote ³¹ In the next section I will discuss the normative significance of (a) and (b).

3.1. The intuitive case

It seems that, and it is widely held that, disabled people have rights that public and private buildings be constructed so that they have accessible bathrooms which they can use.Footnote ³² Without such accessible bathrooms disabled people would not be able to participate in the public, civic, or social world without subjecting themselves to significant risk of harm, namely significant risks of incurring a health problem due to being unable to go to the bathroom when out in public due to a lack of bathrooms they are able to use. Our judgments about rights to accessible bathrooms seem to favour the conclusion that we have rights to public, civic, or social participation without significant risks of significant harm.

Furthermore, consider a colonial state which makes indigenous people have to subject themselves to a risk of harm in order to engage in its political system: it either forces indigenous people to live somewhere that would require them to navigate a long and treacherous route to engage in government or it moves the affairs of the government to a place that would have this effect; colonial states have, of course, done things like this in the past.Footnote ³³ Such a state seems to breach the indigenous people’s rights. One way in which it does this is by breaching their rights to public, civic, or social participation without significant risk of significant harm.Footnote ³⁴

3.2. Political liberty

Our rights to political liberty are our rights to participate in public life, to run for political office, to serve on juries, to vote, and to generally participate in the political life and administration of the states that we are members of. Many philosophers including Rousseau (Reference Rousseau and Gourevitch1997), Mill (Reference Mill2015, 284–86), Rawls (Reference Rawls1971/1999, 197–99), and more recently Thomas Christiano (Reference Christiano2008), have argued that we have rights to political liberty.Footnote ³⁵ Mill, for instance, argues that we need political liberty in order to ensure that our, or our group’s, interests or safety are guaranteed. And Mill also argues that denying a group political liberty damages their self-esteem by sending the message that they are less important, or worth less, than others.Footnote ³⁶

A state that legally requires that, in order to participate in the political life and administration of their state group G must do things which involve their subjecting themselves to a significant risk of significant harm—when group G could easily not be legally required to do these things without another group being significantly harmed—seems to breach group G’s (negative) rights to political liberty. Such a state does not just fail to positively provide group G with the ability to participate in political life; such a state makes it the case that this group is avoidably subject to significant harm if they participate in the political life of their state by legally requiring that group to do things that involve their being subject to a significant risk of significant harm in order to participate in political life. And such a state does not breach this group’s political liberty in order to avoid harm to others. This seems to involve an impingement on this group’s negative rights to political liberty. So, a state that violates a group’s rights to public, civic, or social participation without significant risk of significant harm by legally requiring that, in order to participate in the political processes and affairs of their state that group must do things that involve them subjecting themselves to a significant risk of significant harm violates that group’s (negative) rights to political liberty.

3.3. Rights to live a life that we take to be right, meaningful, or good

There is a strong consensus among political philosophers that some rights, such as rights to freedom of religious belief and expression, are grounded in basic rights to not be forced to refrain from living a life that we take to be right, meaningful or good for us, or which fits with our practical identities.Footnote ³⁷ Non-Catholics have rights not to be forced to go to Catholic mass and polytheists have rights not to be forced to make a pledge of allegiance in US schools to a God that they do not believe in. The idea behind this consensus is that what makes it the case that non-Catholics and polytheists have these rights is that their being forced to do these things conflicts with their views of what a good or meaningful life involves for them or conflicts with their views of what their acting rightly, or acting in line with their practical identities, involves. And we have rights to not be forced to refrain from living a life that we take to be right, meaningful or good for us, or which fits with our practical identities, so long as our living in these ways does not infringe on others’ basic liberal rights.

Breaching our rights to public, civic, or social participation without significant risk of significant harm will encroach on our rights to live a life that we take to be right, meaningful, or good, or which fits with our practical identities. For many people’s views of what a good life, or the right, or meaningful life for them involves—or the life that fits with their practical identities involves—will involve their engaging in the face-to-face public, civic, or social world. We might think that our acting rightly involves our running for political office, to further the aims of our community for instance. Or we might think that our acting rightly involves our sitting on the jury we have been asked to sit on or our becoming a human rights lawyer. A good or meaningful life for us might involve our meeting friends or exercising in parks, trying to be, or continuing to be, a professional athlete, going to university, working in a university, or taking a job that involves domestic or international travel. Our practical identities might require us to drive across the state, or take regular flights, to see our friends or family, to support our favorite sports team in person, or to continue (or begin) doing one of the other things listed above. And our living our lives in these ways does not encroach on the basic liberal rights of others or otherwise harm them. So we would seem to have all-things-considered rights against our state avoidably subjecting us to a significant risk of suffering significant harm in order to live lives that we take to be right, meaningful, or good, or which fit with our practical identities in these ways. Therefore states which breach our rights to public, civic, or social participation without significant risk of significant harm breach all-things-considered rights that we have. In this case, a state which breaches a group’s rights to public, civic, or social participation without significant risk of significant harm will encroach on this group’s rights to live lives they take to be right, meaningful, or good in these ways.Footnote ³⁸

3.4. Rights to be treated as equals

Many argue that we have rights to be treated as equals by other citizens and by our state.Footnote ³⁹ The arguments I’ve given concerning political liberty and rights to live a life that we take to be right, meaningful, or good also seem to establish that if a state makes group A unable to participate in the public, civic, or social face-to-face world without significant risk of significant harm—when other groups are so able to participate—then group A are denied core liberal rights and liberties that others are given, and so are not treated as equal citizens.Footnote ⁴⁰

There is a good intuitive case that we have rights to public, civic, or social participation without significant risk of significant harm; these rights also seem to follow from other rights that there is a very strong case that we have; and bathroom bills breach trans people’s rights to public, civic, or social participation without significant risk of significant harm.Footnote ⁴¹

4.1. The harmful message account

According to the harmful message account, statistical discrimination is unjust or wrongful when it sends messages that harm or exacerbate harms against a particular group. According to this account, racial profiling is wrong because it associates black people with criminality or brings forward this association and thereby exacerbates racism. According to Annabelle Lever (Reference Lever2005, 97), “[r]acial profiling publicly links black people with a tendency to crime” and is therefore “likely to exacerbate the harms of racism,” that is, it “is likely to remind blacks, all too painfully, that odious claims about their innate immorality and criminality justified their subordination in the past” and “perpetuate, as well as reflect, white tendencies to draw invidious and complacent racial distinctions.” According to Deborah Hellman (Reference Hellman, Andrew and Wellman2014, 237), racial profiling is wrong because it tracks familiar cultural stereotypes and “brings forward” troubling claims such as that “blacks are naturally disposed to be criminals.” And according to Hellman and Lever, the fact that racial profiling sends these harmful messages is what makes it wrongful statistical discrimination.

Similarly, bathroom bills, including idealized bathroom bills, plausibly send harmful messages about trans people. Even idealized bathroom bills ban trans women from using women’s bathrooms on the basis of the supposed dangers of allowing trans women to use women’s bathrooms. Such bathroom bills bring to the fore harmful myths in popular culture such as that trans women are mentally disturbed dangerous predators and perverts liable to assault women in bathrooms,Footnote ⁵⁰ and they send the message that these myths are true. This is because bathroom bills ban trans women from using women’s public bathrooms unlike any other group of women including those cis women convicted of assaulting women in bathrooms or convicted of other violent crimes. Bathroom bills also plausibly send the message that trans women are not women because no other group of women—including violent criminals—are banned from using women’s bathrooms. Analyses of the media discourse around bathroom bills has found that harmful myths like these are commonplace in public media discussions of bathroom bills.Footnote ⁵¹ Those enacting bathroom bills also sometimes explicitly endorse these messages when they propose or advocate for these bills. For instance, the President of the North Carolina Senate described its purpose in enacting North Carolina’s bathroom bill as, “stop[ping] a radical ordinance allowing men into public bathrooms and locker rooms with young girls and women.”Footnote ⁵² Similar language was employed by those who proposed and passed a bathroom bill applying to the US Capitol Building in late 2024, the explicit purpose of which was to exclude new trans woman congresswoman Sarah McBride from women’s bathrooms in the Capitol.Footnote ⁵³ Proposing a bathroom bill in early 2025, a representative of the Montana House of Representatives, compared trans women using women’s bathrooms to people who “get off” on the sound of cis women going to the toilet.Footnote ⁵⁴

Many in the education, politics, and sociology literature about bathroom bills also argue that bathroom bills send messages that harm trans people. According to Corbat (Reference Corbat2017, 86), bathroom bills disrupt trans people’s sense of inclusion and safety where they live and in public spaces: bathroom bills lead trans people to feel “ostracized, targeted, and unsafe.” According to Schmidt (Reference Schmidt2013, 158), “[bathroom bills] perpetuat[e] the ‘othering’ of trans people and lead [to] continued violence [against] and harassment of trans people nation-wide.” According to Davis (Reference Davis2018, 209), North Carolina’s bathroom bill

Therefore it seems that bathroom bills constitute unjust statistical discrimination according to the harmful message account.

Proponents of bathroom bills may claim that they merely express a concern for women’s safety rather than sending a pernicious message about trans women. However, given what proponents of these bills say about trans people and how they justify these bills, and the lack of evidence that these bills protect women, this is not a reasonable interpretation of these bills. Second, the harmful message account holds that racial profiling is wrong because of its likely effects on the profiled and because of the harmful messages and stereotypes that it can bring forward and remind the profiled of. Similarly, bathroom bills have been shown to bring forward and reinforce messages harmful to trans people about trans people (in part because they are justified on the basis of these stereotypes and harmful messages).Footnote ⁵⁶ So, by the lights of the harmful message account, bathroom bills are unjust in light of the harmful messages they send.Footnote ⁵⁷

4.2. The contribution to a pattern of harms account

A different account of what makes unjust statistical discrimination unjust is proposed by Andreas Mogensen (Reference Mogensen2019). Mogensen argues that statistical discrimination is unjust or wrong when it has two features. First,

1. (a) A’s motivating reason for treating Y worse than Z involves a merit-relevant judgment about Y, and this judgment is based on A’s belief that Y is F;

2. (b) (A has sufficient reason to believe that) Y is not responsible for being F; and

3. (c) (A has sufficient reason to believe that) Y is not responsible for the fact that their being F is used by A as a basis for their being treated worse than Z.Footnote ⁵⁸

P1 relies on the notion of a merit-relevant judgment. Mogensen says that we should understand this notion in the following way:

The idea behind P1 is that it is, other things equal, unjust or wrong to treat people worse than others on the basis that one believes that they merit or deserve such treatment, when the feature on the basis of which they supposedly merit or deserve such treatment is a feature they are not responsible for having.Footnote ⁵⁹ Non-criminal black and Middle Eastern people who are profiled are not responsible for the consideration on the basis of which they are profiled, namely that they are part of a group who are supposedly more likely to have committed specific crimes or to be in the process of committing crimes. They are not responsible for this, given that they have not committed, and are not committing, any crimes. And the judgment that someone is likely to be committing, or to have committed, a crime is a merit-relevant judgment.

However, according to Mogensen, satisfying P1 is insufficient for an act of statistical discrimination to be all-things-considered wrong or unjust. Affirmative action policies in hiring may satisfy P1, for they may involve treating men or white people less favorably on the basis of their statistical over-representation in a particular field, which is not something that they are responsible for. However, according to Mogensen, this is insufficient to establish that these policies are all-things-considered wrong because the good consequences of affirmative action policies may outweigh the pro tanto wrong done by an action that satisfies P1.Footnote ⁶⁰ According to Mogensen (Reference Mogensen2019, 466), in order to be all-things-considered wrongful an instance of statistical discrimination must satisfy P2 as well as P1:

And racial profiling plausibly satisfies P2 as well as P1 for racial profiling is plausibly part of a larger set of harmful (racist) actions directed at the profiled groups. Mogensen (Reference Mogensen2019, 459–60) argues that, although the harmful message account implies that truly secret racial profiling is not wrongful because it does not send a harmful message, his account implies that secret racial profiling is wrong: even secret profiling contributes to a pattern of harmful actions and involves treating people differently on the basis of considerations for which they are not responsible.

Bathroom bills, including idealized bathroom bills, also seem to satisfy both P1 and P2. They satisfy P1 because they involve treating trans people worse than cis people, for example, they involve treating trans women worse than cis women; cis women can use women’s bathrooms (and gender-neutral bathrooms), trans women cannot.Footnote ⁶¹ Bathroom bills make a (false) merit-relevant judgment about trans people or trans women: that trans women are likely to be engaged in criminal acts in women’s bathrooms, or are part of a group—assigned male at birth people—who are more likely to engage in criminal acts in women’s bathrooms than cis women. Non-criminal trans people who have not engaged in such criminal acts in women’s bathrooms, and who would not do so, are not responsible for the fact that they are part of a group that is supposedly more likely to engage in criminal acts.

Bathroom bills, including idealized bathroom bills, also plausibly satisfy P2. Bathroom bills in the US are part of a pattern of similar actions and policies that collectively significantly harm trans people. For instance, Florida’s bathroom bill is part of a set of other policies and actions that harm trans people, including the outlawing of 80 percent of gender-affirming healthcare (GAH) for adults (and all GAH for non-adult teenagers) in the state.Footnote ⁶² GAH has been shown to dramatically improve the mental health of many young trans people: gender-affirming hormone replacement therapy has been shown to lower depression, suicidal ideation, and suicide attempts by young trans and non-binary people; other gender-affirming treatments have been shown to improve the well-being and mental health of—and reduce anxiety and depression among—trans people.Footnote ⁶³ Outlawing 80 percent of all GAH for adults (and all GAH for minors) in Florida thus significantly harms trans people. At the same time as implementing its bathroom bill, Kansas has also brought in a bill that will make it impossible for trans people in Kansas to change their driving licenses and birth certificates so that they do not out them as trans.Footnote ⁶⁴ Trans people who must show legal identification documents that out them as having been assigned a gender at birth that is different from the gender that they present as are subject to verbal abuse and misgendering; these laws harm trans people.Footnote ⁶⁵ In the UK, restrictions on trans people using bathrooms for the gender that matches their gender identity are also part of a pattern of similar actions and policies. The UK makes trans people wait three to seven years to access GAH and requires trans people to live as the gender that matches their gender identity for two years before being able to legally change their legal sex/gender, and the UK has recently banned all GAH for trans teenagers who are under 18.Footnote ⁶⁶ By restricting trans people’s access to GAH and to change their legal identification documents to match their gendered presentation, these policies similarly subject trans people to abuse, misgendering, and an avoidable increased risk of depression and suicidal ideation. It is plausible that bathroom bills, or their proposal, are part of a pattern of actions that harm trans people.

Idealized bathroom bills also contribute to a pattern of harms against trans people, since although idealized bathroom bills do not make it more difficult for trans people to use public bathrooms, they do send the harmful messages about trans people that we discussed in Section 4.1. That an instance of statistical discrimination sends a harmful message is not necessary for it to be unjust on Mogensen’s account but when it contributes to a pattern of harms, and the statistical discrimination also satisfies P1, this is sufficient for the statistical discrimination to be unjust. The harms of idealized bathroom bans that make them unjust discrimination are similar on Mogensen’s account and the harmful message account. But Mogensen’s account is distinct from the harmful message account. All I have been arguing in this section is that idealized bathroom bans are unjust statistical discrimination whichever plausible account of unjust statistical discrimination we hold. It is plausible that bathroom bills, including idealized bathroom bills, satisfy both P1 and P2, in which case, according to Mogensen’s account, they are unjust statistical discrimination.

4.3. Other accounts

Several other accounts of wrongful statistical discrimination have been discussed in the literature. Adam Hosein (Reference Hosein2018) gives an account of one reason why racial profiling is wrong which might generate a general account of what makes unjust statistical discrimination unjust. Hosein argues that statistical discrimination is wrongful if it gives those who are discriminated against a reasonable sense that they have an inferior political status. As I argued in Section 2, there is no evidence that bathroom bills prevent harm, and as I have argued in Section 4.1, there is a good case that even idealized bathroom bills send harmful messages about trans people and trans women in particular, and do this for no reason given the lack of any harms that such (even idealized) bathroom bills would avert. In this case, trans people might reasonably infer that they have an inferior political status if an idealized bathroom bill were implemented because they are being harmed for no reason or justification. Idealized bathroom bills would thus seem to give trans people a reasonable sense that they have an inferior political status.

Frederick Schauer (Reference Schauer2003, 189–90) argues that it is, or may be, unjust to discriminate against a group on the basis of a true statistical generalization when that group is already stigmatized and either (a) such discrimination will not avert a really high degree of harm (such as a terrorist attack) or (b) there is a means to avert such a high degree of harm that doesn’t solely impact on the stigmatized group and only causes a relatively minor inconvenience (such as waiting an extra 30 minutes at the airport). As I discussed a little in Section 4.2–4.3, trans people are stigmatized.Footnote ⁶⁷ And, as I argued in Section 2, there are no clear harms that bathroom bills of any sort avert. So this view of Schauer’s also seems to imply that even idealized bathroom bills are unjust.

It seems that there is a good case that even idealized bathroom bills breach trans people’s rights not to be subject to unjust statistical discrimination, since this is what several of the most discussed accounts of unjust statistical discrimination imply.

5.1. The arguments in Sex matters

In Sex matters, Holly Lawford-Smith (Reference Lawford-Smith2023, ch. 6) gives the most thorough gender-critical feminist case for bathroom bills. She raises several putative harms and other considerations that she argues justify bathroom bills. Do any of these harms and other considerations outweigh the rights of trans people that I have articulated in this paper?

First, Lawford-Smith (Reference Lawford-Smith2023, 135) argues that cis women may suffer anxiety or fear about trans women or cis men using women’s bathrooms without bathroom bills. Lawford-Smith does not provide any evidence for this claim. But even if some, or many, cis women do experience anxiety or fear about trans women or cis men using women’s bathrooms without a bathroom bill, this fear and anxiety is ungrounded. For, as I argued in Section 2, trans women do not cause harm to cis women in women’s bathrooms, and bathroom bills do not make cis men less likely to enter women’s bathrooms and cause harm to women in women’s bathrooms. Ungrounded fears about a group cannot outweigh that group’s rights. For instance, if white women feared having black women in women’s bathrooms, that would not show that there are good grounds to exclude black women from women’s bathrooms. Furthermore, if some cis women did have such fear and anxiety about trans women (or cis men) using women’s bathrooms without bathroom bills, there are policy responses other than bathroom bills that could be taken to mitigate this fear which do not conflict with trans people’s rights. For instance, given that this fear and anxiety is ungrounded, a public information campaign could be undertaken informing people that (i) (cis) women have no reason to fear trans women using women’s bathrooms and/or that (ii) cis women have no reason to fear that cis male predators will use women’s bathrooms more frequently because trans women have not been banned from using women’s bathrooms.

Second, Lawford-Smith (Reference Lawford-Smith2023, 132) claims that older women who have lived through (even) more sexist times may prefer not to share women’s bathrooms with trans women. However, mere preferences, even if shared by a large group A, cannot outweigh group B’s rights. For instance, the older generation of white people might have racist preferences. They might prefer not to share bathrooms with people of color. But even if these preferences were widely shared and white people were the overwhelming majority in a state or society, these preferences would not override people of color’s rights and make it just to ban people of color from public bathrooms.

Third, Lawford-Smith (Reference Lawford-Smith2023, 133) argues that respecting democratic processes may require respecting a bathroom bill which was enacted through a democratic process. However, laws and policies enacted via democratic processes can be unjust and can violate all-things-considered rights. This argument does not show that bathroom bills are just.

Fourth, Lawford-Smith (Reference Lawford-Smith2023, 133) imagines a scenario in which a cis woman A is sexually harassed by a cis man colleague B. B then claims to be a woman and gains access to women’s bathrooms at A and B’s place of employment and is supported by their employer in gaining access to these bathrooms. This removes A’s only safe space.

It is not entirely clear what work this purely hypothetical scenario could do regarding the justice of bathroom bills. But even if it could hold weight, it does not favour the conclusion that bathroom bills are just for several reasons. First, this employer would seem to have a duty to provide A with a safe space, which could be provided without that safe space being a bathroom. Furthermore, the harasser could be required to use a different women’s bathroom from the one used by the harassed (or to use it at different times) whilst the harassment is investigated. Second, I have only been discussing the injustice of bathroom bills that forbid trans people from using bathrooms for a gender other than the gender they were assigned at birth. The claim that bathroom bills are unjust does not straightforwardly imply anything about what an employer must or may do in this case.Footnote ⁶⁸

Fifth, Lawford-Smith (Reference Lawford-Smith2023, 135) discusses cis women who have post-traumatic stress disorder (PTSD) which is triggered by their being in a small space with someone whom they take to be a man or to be male. She argues that bathroom bills avert harm to such women by making them not have to share small spaces with people who trigger their PTSD. Lawford-Smith does not, however, provide any evidence that there are such, or many such, women who have their PTSD triggered by sharing bathrooms with trans women. It is also unclear that group A’s having PTSD regarding group B can license group B’s being excluded from public bathrooms they share with group A. Suppose that some people have PTSD regarding a religious or ethnic minority due to being attacked by a specific member of such a minority. This could not license the exclusion of that minority from public bathrooms.Footnote ⁶⁹ Furthermore, PTSD is a disability, so women with PTSD who are particularly triggered by people whom they perceive to be men in women’s bathrooms could use disabled bathrooms. We owe support and care to people with PTSD but it is unclear that the rights and interests of cis women with PTSD whose PTSD is triggered by people they perceive to be men could establish that bathroom bills are just.Footnote ⁷⁰

5.2. Lawford-Smith’s other arguments

There is another argument that Lawford-Smith makes for bathroom bills in other places. This is an argument that constitutes an objection to my argument in Section 2.1 that bathroom bills do not avert harm because trans women do not pose a danger to cis women in women’s bathrooms. Lawford-Smith (Reference Lawford-Smith2022, 104; Reference Lawford-Smith2023, 125) argues that we have good reason to believe that trans women present a danger to cis women in women-only spaces in general including in bathrooms because trans women share important features with cis men and cis men are a danger to cis women in these spaces. The relevant shared features Lawford-Smith mentions are: (i) high levels of testosterone, (ii) male genitals, and (iii) a history of having been socialized as men and treated as men.

There are several issues with this argument. First, it faces an explanatory problem. If these shared features make trans women a danger to cis women in women’s bathrooms, why has permitting trans women to use women’s bathrooms not resulted in increased safety and danger issues in women’s bathrooms? (In Section 2.2 I argued that permitting trans women to use women’s bathrooms has not resulted in such increased safety and danger risks in women’s bathrooms). Second, most trans women do not share the relevant features with cis men. We lack any reason to believe that someone’s having male genitals on its own—that is, without higher levels of testosterone and lower levels of oestrogen than are average for cis women and without being socialized as a man—has any connection to their being a danger to cis women (similarly, whether someone has a large nose or head is on its own irrelevant to whether someone is a danger to someone else). Most trans women do not have high levels of testosterone and low levels of oestrogen: 70 percent of trans women are on “feminizing” hormone replacement therapy (HRT), which reduces trans women’s levels of testosterone and heightens their oestrogen levels so that they have levels of oestrogen and testosterone within the typical range for cis women.Footnote ⁷¹ Most trans women were not socialized as cis men are socialized because the overwhelming majority of trans women thought they were girls, or were not boys, from a young age.Footnote ⁷² And some trans women transition young and because of this have not been socialized in the same way that cis men have been.Footnote ⁷³ Furthermore, if a bathroom bill were implemented on the basis that trans women share features with cis men that make them more likely than cis women to harm cis women in women’s bathrooms, then bathroom bills would still involve statistical discrimination against trans women. And, as I argued in Section 4, this statistical discrimination is unjust.Footnote ⁷⁴

5.3. Stock’s argument

In Material girls, Kathleen Stock (Reference Stock2021, 105–6) argues that the full extent of the harms of allowing trans women to use women’s bathrooms will take some time to emerge. It’s not clear how long she thinks this will take; in the UK trans women have been able to use women’s bathrooms since 2010 (and have been able to use women’s bathrooms in Ireland and many US states for more than ten years).Footnote ⁷⁵ Stock claims that the issue here is the erasure of the norm that women’s spaces are same-sex spaces: she claims that as this norm erodes more malicious cis male predators will realize that they can easily access women’s spaces because there is no longer a norm that only females use women-only spaces. As I argued in Section 2, we have not seen any such effects in the ten to fifteen years since trans women have been able to use women’s bathrooms. So either

1. (a) allowing trans people to use single gender bathrooms other than bathrooms for the gender they were assigned at birth does not erode this norm, or

2. (b) eroding this norm does not lead to cis male predators thinking that they can more easily enter women’s bathrooms with impunity in a way that leads them to enter these bathrooms more often.

Both (a) and (b) are plausible. Regarding (a), in places that have permitted trans women to use women’s bathrooms for many years, many gender non-conforming cis women and assigned female at birth non-binary people who are perceived by some to be male are subjected to harassment in women’s bathrooms (and may be increasingly subjected to this harassment).Footnote ⁷⁶ This would seem to show that the norm that women’s bathrooms are spaces that male appearing people should not enter is not being undermined over time. Bathroom bills also require very masculine trans men, who are perceived as male, to use women’s bathrooms,Footnote ⁷⁷ so in places where there are lots of trans men, bathroom bills could be argued to themselves erode this norm.

On (b), it is unclear why or how a social norm that only female people use women’s bathrooms would effectively deter cis male predators from trying to access women’s bathrooms much or at all, since they already intend to do things (sex crimes and assault) that there are stronger social and moral norms against.Footnote ⁷⁸ At any rate, given the evidence that permitting trans women to use women’s bathrooms has not led to any increase in sexual predators in bathrooms over a long number of years, and given our reasons to doubt that such permissions would lead to such an increase via social norm change (or via other mechanisms), Stock has not shown that we have good reason to believe that bathroom bills avert harms and that there are harms to cis women of not having bathroom bills that justify bathroom bills’ breach of trans people’s rights.