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A Libertarian Perspective On Gendered Bathroom Segregation

Recently in the United States, bathroom usage rights for transgender people have come to the political fore. As a part of Title IX protections against gender discrimination in federally funded educational institutions, the Obama administration has recently ordered public schools to allow students to use whichever bathrooms they please. This should free transgender students from the unpleasantness of using what they perceive to be the wrong bathroom, or being asked to use single-user facilities (unlike and apart from their classmates).

This development is the culmination of a debate that first brewed on various college campuses across the country and later issued in various state-level “bathroom bills” that would require people to use the bathrooms that correspond with their birth certificate gender. But now that even President Obama himself is involved, this issue is unlikely to dissipate quietly and without additional relevant legislative and/or judicial action.

It’s not too difficult to see why bathrooms have historically been a focal point during times of social change. Before bathrooms became a pressure point in figuring out how transgender people should be included and accommodated publicly, they served as a literal and metaphorical site of racial tensions during the Civil Rights movement and of sexist tensions as women increasingly worked and ventured outside the home.

Hypothetically in a robustly free country, businesses and organizations would be left alone to determine their own bathroom policies, while customers would be free to visit whichever locations they like. This means in theory that businesses could choose to offer bathrooms segregated along any conceivable dimension. However, establishments with odious bathroom (and other) policies would likely fail fast.

The only places likely to thrive with such practices in place would be, for instance, small ideological clubs/foundations and houses of worship. And the existence of self-contained islands of social dissent do not threaten the liberal order. On the contrary, the protection of peaceful freedom of association is an essential feature of liberalism.

But starting from the quite non-libertarian status quo, things are much more complicated. The provision of bathrooms is already heavily regulated. For instance, overlapping and even conflicting bathroom regulations in New York City mean it’s often unclear whether a restaurant or coffee shop is in compliance with bathroom code, which depends on the number of seats, age of the building and business, and other factors.

The already-regulated status quo means that when the government declines to further regulate bathrooms, that refusal bears greater symbolic value than if public bathrooms remained a generally extra-legal issue (as in the ideal libertarian state of affairs). If it was appropriate to legally protect bathroom access for people of color and later people with disabilities, refusing to do so for transgender people suggests by implication that their status is somehow less important.

That being said, state-level bathroom laws will probably have fairly little effect in practice. It would be incredibly burdensome to actively check that bathroom visitors at any given venue were choosing the right door, regardless of whether they were supposed to use the facility corresponding to their birth gender, current legal gender, apparent gender, or personally professed gender.

Of course, acts of voyeurism and sexual assault are already criminal, so police are already empowered to prevent and investigate them whether or not they are also empowered to act as gender enforcers. Perhaps a few would-be bathroom criminals would be deterred by the prospect of getting hit with an extra charge for simply having used the wrong bathroom, but criminal penalties for sex crimes should be enough already.

Finally, we should remember that it is ok to personally disagree with the law. Even more importantly, a liberal society requires us merely to tolerate peaceful others, not to eagerly approve of everything about them in our hearts. Social conservatives have been losing the culture wars for some time and are not incorrect to feel like their ethical ideals are waning. It will take time and experience to show those uneasy with changes in bathrooms that those changes are really a non-issue. Top-down action, like that of the Obama administration, can change policies but it doesn’t necessarily win hearts and minds, and may even provoke political backlash.

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Same-Sex Marriage: A Libertarian Perspective

The dust is just now beginning to settle on same-sex marriage in the United States, since the Supreme Court’s recent ruling in Obergefell v. Hodges established the unconstitutionality of state-level bans on such marriages. Though the law of the land has been established, all the legal and sociocultural effects remain to be seen (for example, can elected officials receive a religious exemption from performing certain job-related duties).
Is same-sex marriage a victory for freedom? It’s hard to say, and depends on who you ask. The ability to marry a partner of the same sex at the same time both expands the life possibilities for many citizens, while also bringing them into the fold of semi-coercive social norms regarding what a proper long-term romantic relationship and family look like. The Supreme Court let “love win,” but that love is now an increasingly institutionalized one.
To those who we could call “rule of law” libertarians, the most important consideration is fairness and impartiality under the law. This perspective comes down in favor of same-sex marriage for obvious reasons having to do with fairness and equal protection. End-the-state libertarians, on the other hand, strongly disapprove of government in marriage to begin with (on the grounds that it invites and normalizes the meddling of government in private affairs), and object to its expansion (even to same-sex couples) as more of a bad thing. Some in the LGBTQ community (who may or may not be libertarians or anarchists) share this concern, believing that marriage is a kind of well-meaning but ultimately pernicious encouragement towards the conventional domesticated lives they don’t actually want.
No principled libertarian objects to gay marriage for specifically moral reasons, having to do with “marriage” being reserved for the permanent bond between a man and a woman, for instance. Whether it is un-libertarian to have reservations about progressive views regarding the malleability of sexuality and family is a trickier question (certainly progressive, libertine, and conservative libertarians have basically always co-existed in libertarianism’s big tent).
Libertarians do reasonably worry that same-sex marriage will lead to the abridgment of other liberties, namely freedom of religion and freedoms of association, especially through commerce (see, for example, the fight over whether religious bakers must bake a wedding cake for a same-sex couple). However it is certainly nothing new in principle that some values in a plural society would necessarily become pitted against others. And it does not seem to be the goal of same-sex marriage proponents to use that position strategically for the purpose of dismantling other liberties, though the possibility is real and conspiracy theories abound.
Could there be other libertarianism-consistent reasons to oppose same-sex marriage? Not really. Allowing only straight marriage in order to “strengthen the nuclear family” runs afoul of the libertarian goal of making minimalist policy that is as value-neutral as possible. Even if same-sex marriage and parenting somehow did in fact weaken family life overall (it’s complicated, and family stability may matter more than gender), that would be a less important consideration for even most socially conservative libertarians than establishing state neutrality in marriage. In any case, there are relatively hands-off ways for the government to fight childhood poverty and provide opportunity to families, like properly-structured earned income tax credits and basic food support, that do not necessarily require discriminating on the basis of the biological or adoptive parents’ sexuality.
Similarly, slippery slope arguments against same-sex marriage don’t seem to be consistent with libertarianism. The threat of a slippery slope from same-sex marriage to multiple partner marriage (polygamy) is real. However, that move only seems like a pernicious slippery slope if one assumes that legally-sanctioned marriages must be between one man and one woman in the first place. Rule-of-law libertarians would likely reject that assumption.
In the end, it is not really up for debate – from a libertarian perspective – whether people of the same gender should be allowed to marry conditional on the fact that government is in the marriage business in the first place. Since marriage, in the civil-legal light, is about distributing the benefits and burdens of a particular form of citizenship, that form of citizenship should be in some strong sense available to all.
It’s a separate issue as to whether the government should require private businesses that cater to heterosexual weddings also to cater to same-sex weddings. The primary values at stake here are economic freedom versus non-discrimination, but the situation is much more narrow than the marriage question in general (which necessarily has broad and far-reaching consequences over many citizens’ whole lives). Whether a libertarian, or anyone, should trade some economic freedom in the attempted pursuit of non-discrimination is, however, a topic for another time.

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Education and a Free Society: Part Two

Previously, Prindle director Andrew Cullison argued that libertarians should favor public education because well-educated citizens would be more likely to endorse and support a generally free political structure. In response, I pointed out that school doesn’t do a great job of teaching the relevant subjects, and that most of the gains to becoming educated (especially attending college) are individual gains, not public goods. To top it all off, voters are generally uninformed (and have incentives to remain uninformed), and government actors are very good at benefitting themselves rather than their constituents, despite the best intentions of ordinary citizens. Are there any reasons for a libertarian to support education, specifically publicly-funded (i.e. tax-funded) education?

Libertarians are essentially individualists. They generally believe that the individual, and not the country, community, or “society,” is the foundational unit of political (and moral) analysis. For this reason, I previously expressed doubts that libertarians would be friendly to the idea that publicly-funded education is a good way to promote libertarianism. That comes close to seeing voters as a kind of clay to be molded through political processes into a citizens who do what you want them to do (i.e., be libertarian). It may result in the right end state, according to a libertarian, but I’m uneasy with the method. (Ideally, issues that are a matter of fundamental rights would not be subject to popular vote in the first place, anyways).

But this individualism can be understood as logically prior to the libertarianism itself, at least in many or most cases. That is, people hold libertarian political positions because they are sympathetic to the individualist worldview. The individualism, then, explains the libertarianism. And individualism can also generate a kind of defense of publicly-funded (even compulsory, tax-funded) education.

As individualists, we should be concerned at all times with how policies that target groups actually affect individuals, benefitting some at the cost of others. And we should be interested in designing institutions that foster individual virtues like self-reliance, responsibility, and autonomy (or allowing these institutions to emerge).

Inconveniently, though, individuals don’t enter the world ready for full autonomy (and responsibility). Instead, they enter as babies and then kids who require significant growth and development to be ready for the primetime of adult life. Families do a pretty good job of raising their young, certain tragic examples notwithstanding, and it would be of greater harm than benefit to attempt to re-organize this basic feature of human societies (even apart from the rights violations involved).

We, as a society, can’t fully compensate for the differences between people and the ways in which their parents raise them differently within the bounds of moral permissibility (and even if this were possible, it’s not clear that it’s morally required or desirable). But we can provide some kind of a basic education to all as an acknowledgment of the capacities each person has – and of the responsibilities a free society will expect her to bear as an adult.

Deciding how much and what kind of education fulfills this individualist purpose won’t be easy, and certainly depends on the context (how prosperous a society is, what the job market is like, etc). But respecting and protecting the rights and freedoms of individuals is the best reason for governments to get involved in education (if there is a compelling one in the end at all). Education markets don’t experience “market failure” in the traditional sense, and it’s unjust to educate students with an eye towards turning them into particular kinds of voters. But the kind of individualism that animates libertarian political positions can also motivate a principled desire to see each citizen receive the education she needs to operate within the kind of society maintained around her.

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Education and a Free Society: A Libertarian Perspective (Part One)

If liberty is so fundamentally important to libertarians, then they should readily support means of achieving and maintaining it. Taking it as a given that libertarians care about liberty as a primary sociopolitical value and aren’t going to change their minds about that, should they include public education amongst these means?

Dr. Cullison has argued that (1) an educated populace constitutes a public good of the kind libertarians already think governments may permissibly encourage through taxation and spending; and (2) that an educated populace actually would (or could, given the right education) defend liberty in the way that libertarians would like. The first claim is an appeal to logical consistency, and the second is an empirical claim.

To the first point: just because a libertarian (or a “minarchist” – supporter of the small state) acknowledges the collective action problems involved in providing public goods doesn’t mean that every potential public good then ought to be provided by the government. There are always complicated tradeoffs involved with policy decisions. Perhaps when we look at public education, we find that a large majority of the benefits (broadly construed) accrue to individuals, with positive spillover effects socially (in terms of GDP or something). There would then be no inconsistency problem to decide that treating education as a public good didn’t make sense, all things considered.

But, more importantly, it’s unclear that increasing amounts of education would serve the libertarian goal, as a matter of fact. The types of courses that would instill a respect for freedom in students – history, economics, political science – are conspicuously absent from most curricula, even at the college level, and taught superficially to poorly when offered. The political-bureaucratic apparatus around middle and high school education ensures that this mediocre status quo remains enshrined in perpetuity.

And funding higher education is relevantly different than funding basic K-12 education, as a public goods matter. Many of the most educated people in this country argue for free college for all, and undoubtedly dealing with one’s student loans can be incredibly stressful. But the returns of a college degree reliably exceed its costs, and they are paid out to the degree-holder in terms of increased wages. A large part of why college is so expensive is because campus life has been getting nicer, and people take plenty of fluffy but fun electives, so college is also a consumption good for its consumer (the student).

Why should taxpayers fund a long and only semi-educational vacation for students who will themselves reap most (if not all) of the financial gains later? With this hefty carrot already inherently on the table, society is unlikely to systemically under-invest in college in a way that would justify wide-scale government intervention (which can itself readily lead to over- or at least mal-investment).

Public goods considerations are supposed to keep us from overshooting on paring down the state so far that we risk lapsing back into dysfunctional society of another kind. But it’s not clear that capping public spending on education (or redistributing it more equitably, such as from rich school districts to poor) approaches that line.

As a moderate libertarian, I do find the more compelling argument for public education is indeed the individualist one. People ought not to be educated at public expense for the reason that they can (hopefully) become little cogs in the liberty-supporting political machine. On the contrary, education with a political purpose in mind can go so far as turning into manufactured consent – a state producing the consent it needs for legitimacy by its own processes (like public education).The observations that political stances are largely heritable and that voters are irrational cast further doubt on any plans to promote liberty through the education and subsequent political participation of individuals.

It might just be the other way around: broad liberties are themselves a foundational public good that generate surplus social value, more so than education per se, and should be protected by constitution and judiciary whenever possible. Widely-available education is a complicated investment, consumption, and signaling activity, and it’s the output of a free society even more than an input to it. In the next post, I will develop this argument in more detail.