I think the primary problem related to this is one of culture and not one that law is appropriate to address. Let’s consider the current situation, in that, we have separate restrooms and there’s no laws, at least as far as I’m aware, that make it illegal for me or even have any way to stop me from using a women’s room. I don’t because of the social contract about gender segregated restrooms and I have no compelling reason to do something different. At the same time, I’ve been in situations, like a concerts or sporting events, where I see women going in and using the men’s room. They generally don’t for the same reason I do, but when there’s a compelling reason, like a massive line for the women’s room, they do. It’s a bit odd when I’ve seen it, not because I have some sort of fear or concern, mostly just because it’s abnormal. I’m not sure I’ve ever seen the opposite, though I wouldn’t be in a situation to really observer, but I could imagine it might happen if it’s a similar type of event that has a much larger male audience and, thus, leaves men with a long line and women without one.
By the same token, I think it’s more or less this that negatively affects people. It’s odd seeing people who, for some reason or another, don’t belong. But at the same time, I don’t really understand the concerns that something bad happening becomes meaningfully higher because a man is in a restroom with a woman than if he’s near her in other types of situations. For example, I’ve been in clothing stores that just have a set of several changing rooms, not gender separated, what’s different from a man and a woman changing clothes in adjacent stalls vs relieving themselves?
Is the concern that he’s going to rape her? Frankly, I think that’s more a result of that oddness that raises that, and if we had unisex bathrooms and people were accustomed to that, that just wouldn’t be the case. And if there’s concern about perversion, that’s something that would be more likely in that situation that just in another one, but with stalls and divides between urinals and all, it seems to me that it would be difficult to pull that off discreetly.
That all said, I do sympathize with privacy, and feeling safe when engaging in generally private activities that occur in bathrooms. So, I don’t think the answer is just “deal with it”. It needs to be a culture shift. First, and I think this is already overwhelmingly the case, but I think transgendered people should be aware of how they appear to other people and how the particular circumstances affect how their actions are perceived, and make appropriate judgments balancing potential reactions and the comfort of others with their needs. That is, if a trans woman is dressed up and is presenting herself as a woman, by all means, even if she doesn’t pass to well. If, perhaps, she’s out and about not in such a way, perhaps still dressing as a man for work because she’s not out there yet, then I don’t think it’s unreasonable to ask her to still use the men’s room when she stops to buy groceries on the way home. Unfortunately, it gets much fuzzier for the situations between those sorts of things.
Second, and this is on the rest of us, we need to get the hell over it. It really isn’t a big deal. There’s people who have obnoxious concerns even as things are, of other men, accidentally seeing their penises when they’re at a urinal. Even if that man IS gay, unless he’s going to stare, or worse, make some kind of advance in a clearly inappropriate situation, so what? And if it’s that much of a concern, use a stall. Women always use stalls unless they’re only using the sink. So, unless someone is peering over or under or through the small cracks in the stall, which would be blatantly obvious to anyone else in the bathroom, that’s just not going to happen. Hell, I don’t even see the need for separate bathrooms. Have a section for stalls, maybe have a small bit around a corner for a bit of privacy for urinals, which obviously only physical men will use, or maybe not even really bother as any man that concerned about privacy will use a stall anyway.
I do get that at a place like a gym or somewhere where people will disrobe might be a bit more of a concern, but I’m not even really sure how that’s different from now. Not only does it seem to me that generally someone who has body image issues will have those around people regardless of gender, but also that transgendered people are probably far more likely to have body image than anyone else. In those cases, why not add a few changing stalls that addresses a place for people with whatever privacy or body image issues they have or, hell, even just change at home or whatever and put over-clothes on, and just use those areas to just pull them off so nothing more shows. Hell, I change at home, not out of privacy concerns, just because it’s so much easier and I don’t have to drag all that stuff to the gym.
Regardless, I don’t see how the government can meaningfully do anything about and of this. Let a business police, or not, their bathrooms as they see fit, and really, the only adjustment I can even see is just making sure people have privacy in reasonable situations where they feel they need it. If a publish restroom has no toilets with doors, add some; if a changing room as no private stalls, add some. It solves this AND other issues. It seems win-win to me.
Even if the government could provide some sort of self-identified gender card, so what? What stops a supposed pervert from getting one? And what’s the recourse if someone is caught using a bathroom without a card? And what about the unfortunate souls who are not transgendered but are somewhat androgynous, do they now have to carry around a card in case anyone complains about them? I think they need to do nothing and let people get used to it and it will fix itself in due time.