By Ann Neumann 

“So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall.” I Samuel 25:22 KJV

It’s unhealthy to hold it. In a 2014 article for Reviews in Urology about the challenges New York City taxi drivers face because of lack of public bathrooms, lead author Alon Y. Mass notes that holding it can lead to “voiding dysfunction, infertility, urolithiasis [urinary tract calci or stones], bladder cancer, and urinary infections.” It’s called Taxi Driver Syndrome; all these problems are prevented or eliminated if taxi drivers have somewhere to, you know, eliminate.

From personal experience, most recently on a drive back from Bronxville, I can attest that “holding it” is also painful, even crazy-making. As I drove in circles, I fantasized about deserted alleys or bushy trees, both hard to come by in Mott Haven. I finally found relief in a (unisex) bathroom at a Shell gas station.

Regular urination isn’t just a natural body function—shameless, universal, necessary —but preventing someone from urinating can cause irreversible health problems. Which seems particularly worth noting right now, as states squabble with the Obama administration over who gets to use which bathrooms. So before we get too caught up in the political rhetoric— Totalitarianism! Sexual predators spying on our daughters!, The end of American culture as we know it!—of our most recent skirmish in the ongoing American bathroom wars, let’s just agree that having to pee and not being able to can be a health hazard.

As well, limiting the number of places where a person can pee results in a kind of social control. It limits one’s access to public places and one’s mobility within general society. If you can’t pee at a theater, shopping mall, school, or wherever you’re going, leaving your own bathroom becomes challenging. Blocking bathroom access limits access to public places, it limits mobility, and it controls the activities of those who are blocked. But we’ve always known this, which is why bathroom access has long been a powerful tool in America’s culture wars.

According to a brief bathroom history by Samantha Michaels at Mother Jones, gender segregation in bathrooms in the US began in 1887 when Massachusetts required that employers provide women with separate bathrooms in their places of work. The law, according to Michaels, was passed to “protect women and maintain ‘separate spheres’” in the workplace. By 1920, 43 states had passed similar laws.

Also in the late 1880s, Jim Crow laws in the South required that bathrooms be segregated into those for “whites only” and “blacks only,” the fear being that blacks would spread disease and danger if they peed where whites did. In 1941, women protested President Franklin Roosevelt’s executive order prohibiting racial discrimination in hiring practices, fearing the spread of disease by their black colleagues if both races used the same bathroom. In the late 1940s, police were directed to patrol public bathrooms for gays, publicizing their names if caught. In the early 1950s, school girls in Little Rock, Arkansas, used sick notes to avoid sharing locker rooms with black classmates.

And in the 1970s, the STOP ERA movement, headed by the indomitable Phyllis Schlafly and her allies, asked, “Do you want the sexes fully integrated like the races?” Schlafly’s real issue with the Equal Rights Amendment, debated but not approved since the 1920s, was what she called government overreach. Savvy about such things, Schlafly knew she would have to make her opposing argument as emotional as possible. She employed an old rhetoric for her own purposes. Libbers, lesbians and sluts, made equal to men by the ERA, were going to endanger America’s real women and they would corrupt real men by bringing rapists into public bathrooms, upsetting civil society, putting girls and grandmothers in danger, and emasculating good men by taking away their social privileges.

Nevermind that Schlafly’s charges were illogical and unsubstantiated. She was effectively replaying fears of African Americans as dangerous, dirty, licentious, and diseased; and slandering women who in any way deviated from very strict ideas of how a woman should behave. Schlafly was explicit about her racism and misogyny, but not all her allies had to be—they could hide behind claims of health and safety, a rhetoric that deemed real women and children as inherently vulnerable and constantly in danger. Real American women were delicate flowers, subjects of chivalric protection and best suited to home and hearth, preferably with a squabble of children nestled in their skirts. Equality, in other words, was pathologized. It was a sickness that threatened not just these vulnerable members of society, but the entire social structure. Equality between the races and sexes, in Schlafy’s summation, was a health and moral risk for the entire country.

Schafly’s clout was her Christian morality, a particular brand of belief that adhered to male headship and a mythical “traditional family” model. She labeled any dissenters as “un-American” nonbelievers, a disease on the country. These narrow gender roles were as outdated at the time as their discriminatory racial pathologizing was—or so we’d like to think.

In the spring of 1972, Congress passed the Equal Rights Amendment and sent it to the states for ratification, allowing a seven-year period for two thirds of states to adopt it for the bill to achieve full passage. The ERA never passed, thanks to the efforts of Schlafly and her STOP ERA movement.

Schlafly, at age 91, is still alive today. And kicking, I imagine. As are the potent and regressive arguments she helped concoct to stop the passage of the ERA in the 1970s. Looking at the current rankle over allowing transgendered students to use the bathroom of their choosing, it’s hard to believe that the statement, often attributed to Dr. Martin Luther King Jr., “The arc of the moral universe is long but it bends toward justice,” isn’t just an old wives’ tale. Maybe the arc of the moral universe just finds new ways to perpetuate injustice?

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It’s hard to believe that the same arguments for safety and health regarding bathroom use still have efficacy. But they sure do. In the past three years, six states have attempted to pass legislation that restricts transgender bathroom (and locker room) use—Arizona, Nevada, South Dakota, Texas, Tennessee, and Wisconsin. North Carolina successfully passed a bill on March 23rd titled, The Public Facilities Privacy & Security Act, or HB2.

As Chloe Durkin wrote at Popsugar, North Carolina’s HB2 requires that students use the bathroom that corresponds with the gender on their birth certificate. But it goes further. HB2 also “imposes a strict definition of what forms of discrimination are prohibited under state law — namely discrimination based on race, religion, color, national origin, age, biological sex, or handicap. Sexual orientation is never explicitly protected by state law, and HB2 will now prevent any local-level LGBTQ protections from being passed in North Carolina.” Don’t miss that “biological” before “sex,” a parallel to gay rights opponents’ rhetoric about how non-heterosexual sex is a violation of biology, a grasp by typically anti-science groups at scientific substantiation for their moral values.

The White House called North Carolina’s law “meanspirited.” In response, on May 13, the Department of Education and the Department of Justice issued a national directive that requires schools to allow students to use the bathroom that matches their gender identity. Conservatives across the country were outraged—for the same “government overreach” reasons that Schlafly and the STOP ERA movement were. And they employed the same emotional, fear-mongering language of the past. Immediately, eleven states sued the Obama administration.

When announcing its challenge to the directive, a Texas spokesperson said their lawsuit put the “safety of its students first.” Lt. Governor Dan Patrick stated contemptuously of Obama, “He says he’s going to withhold funding if schools do not follow the policy. Well in Texas, he can keep his 30 pieces of silver. We will not yield to blackmail from the president of the United States.” The conservative Family Research Council notes on their website that, “The government should never purposefully threaten the public safety of women and children by creating the legitimized access that sexual predators tend to seek,” a statement that once again wrongly conflates pedophilia with non-heterosexual sexuality or non biological gender identity.

Bathroom access is a public health issue, but not in the way that opponents of the directive claim. These rebellious legislators are using the powers of the state to impede public health, not by “protecting” precious children but by harming vulnerable ones. Every transgender child in the country is now a target; all attention turned to their need to pee. By making gender out to be their own God’s work, opponents are employing and deploying a natural, moral and biological version of gender that does not actually exist.

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In an article for the conservative news site Breitbart, John Hayward summarized the tone and history of support for HB2—and opposition to the Obama administration’s directive. Pulling together threads of anti-Communism, fears of totalitarianism, appeals to “common sense,” and a diminishment of the safety and rights of a minority group, Hayward gives away the real passion at the heart of bathroom restrictions—government overreach: “Welcome to life in totalitarian America, where even going to the bathroom and identifying the sex of an adult have now become intensely political acts.” As if these weren’t already politicized.

He claims that American society had already solved the problem of bathroom access, looking past bathroom users whose gender might not, in observers’ minds, add up to the sign on the door. “Decent-minded, live-and-let live” Americans simply looked the other way or called the cops when they felt threatened. As if discrimination weren’t already laden with feelings of threat, as if having the cops called on you while using a bathroom isn’t oppressive. He goes on to characterize transgender people as “utterly bizarre,” and defiers of what the rest of the population already knows with “their eyes and hearts.”

Hayward also resorts to Shlafly-like moral appeals. Those who find transgendered bathroom users unhealthy and unsafe are “publicly slandered as quasi-racist bigots if they murmur any objection.” The presence of minority groups, in other words, are a threat to the rest of us. “You will now be made to care about men who claim they “identify” as women, while pushing their way past you and into public restrooms that were once the preserve of wives, mothers, girlfriends, and daughters,” he writes.

Yet if we accept Phyllis Schlafly’s premise that violating any one person’s health and safety is a risk to the entire nation’s public health, a blight on the moral status of the country, the way to correct fears of trans persons in the “wrong” bathroom would be to accommodate their needs, not denigrate and further marginalize their existence. But that’s not how elections are won, that’s not how bills get passed, that’s not how self-righteous cultural stands shape surveillance and behavior. Public health and safety, after all, aren’t really a zero sum game—something Schlafy and even HB2s supporters know very well.

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Past “The Patient Body” columns can be found here.

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Ann Neumann is a contributing editor at The Revealer and Guernica magazine and a visiting scholar at The Center for Religion and Media, NYU. Neumann is the author of The Good Death: An Exploration of Dying in America (Beacon Press, 2016).