Each time I pick up Alexis de Tocqueville’s Democracy in America, I check the copyright date just to make sure it really was written in the 1830s. He seems to capture the American psyche perfectly—even after almost 200 years and offers incredibly relevant insight into the political issues that plague us today. I am reminded of this once again this week as the fallout from House Bill 2 in North Carolina continues. This law sought to block an “anti-discrimination” ordinance in Charlotte that would have allowed people to use the bathroom of their gender identity.
Now certainly Tocqueville has nothing to say about public bathrooms, but what he does write about helps us to understand why there can be no true civil discourse, especially surrounding this issue. When Tocqueville visited the United States in the 1830s, he found that democratic principles animated nearly every aspect of American life. What struck him most was what he called the equality of conditions among the people. Perhaps most surprising to Americans today, he found that love of equality—not freedom—was “the ruling passion of men” in the U.S. Tocqueville feared that the more the principle of equality takes hold of a society, the more pressure there is to see everyone as essentially identical. When equality reigns, any form of discrimination is bad because it classifies the other as somehow different. To discriminate seems absolutely un-American. To exacerbate the problem, in a democracy many beliefs gain unquestioned acceptance because the only intellectual authority is the opinion of the majority. To remove the threat of the tyranny of the majority, Tocqueville thought that one crucial check was the power of religion in forming morals.
Even the most ardent secularist has to admit that the principle underlying the American hatred of discrimination—that “all men are created equal”—is the fruit of what Jacques Maritain termed the “hidden work” of the Gospel on the secular conscience. Specifically, it rests upon the dignity of the human person. No other culture and no other religion taught this. It is only in a Christian culture that such an understanding of the equality of mankind arises. But this equality does not mean that people are equal in every way. People are very different with respect to their roles and their contributions to the common good. Yet, divorced from its religious grounding, the equality of men runs amok.
Tocqueville also noticed that democracy and the love of equality affect the English language. In particular he found that Americans have a “passionate addiction” to generic terms because they condense many objects into a few words. Along these same lines, Americans often omit modifiers in order to avoid the hard work of scrutinizing ideas. An obvious example of this habit is the term “pro-choice,” which refers to someone in favor of performing a certain act without actually naming and, more important, scrutinizing what that act is.
Now returning to America’s obsessions with anti-discrimination, we must admit that man is a discriminating animal. Through the use of his reason he is able to discriminate between what a thing is and what it is not. One could argue that to cease discriminating is to cease being human. To accuse someone of discrimination is to accuse them of being human—in that respect we are all guilty. The fact that there are two bathrooms to begin with is because we discriminate between men and women and their toilet needs. Public bathrooms are by their very nature discriminatory.
A moment’s reflection leads us to conclude that a key adjective is missing. It is not a question of discrimination, but whether the discrimination is just or unjust. By avoiding the use of the adjective just, Americans dodge the tough question of what constitutes just behavior. And this leads to muddled thinking about a whole variety of practices. Rather than looking at what is just we simply give in to the person who speaks the loudest (another democratic principle). To cry “discrimination” is enough to get the ACLU involved, regardless of whether the discrimination is just or not.
In other words, any discussion about whether an action is discriminatory or not must be preceded by a discussion on justice. Broadly speaking, justice is defined as giving each man his due. Any act of justice flows from the realization that something is man’s due. In other words, a discussion of rights must come before a discussion of justice.
What does this have to do with the “Bathroom Law” as it has come to be known? Tocqueville helps us to see our blind spots. No one is immune to the cultural obsession with equality. Leaving the specifics of the law to those more legally inclined than I and looking at the Charlotte ordinance it was meant to combat, we have to ask whether a transgender person has the right to use a public bathroom of their gender identity. The problem again lies in the inability to make distinctions (i.e. discriminate). “Transgender” is a catch-all term that includes people “whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” In other words, it can be a person who is actively trying to change their sex (gender identity) or someone who expresses themselves as a different sex by cross-dressing and the like (gender expression). Further complicating this is that their sexual orientation needs to be factored in. Who exactly would be protected by such ordinances? Does a man who dresses like a woman (gender expression), but has an attraction to women (sexual orientation) have a right to use a women’s bathroom?
Claims of “discrimination” blind us to the fact that no one can clearly articulate who the law really affects. Without any clear distinctions, how can we even begin to examine whether the law justly discriminates or not? These toilet torts will always be unjust because the parties that are affected are not known. At the very least, the NC law did try to make a clear distinction by using the Birth Certificate (which can now be changed apparently). In truth it really is the desire for anything goes. All human beings use the bathroom, so therefore a human being may use any bathroom.