North Carolina's so-called "bathroom law" requires individuals to use the gender-designated bathroom that accords with their birth sex. Supporters treat this as a common sense solution that what they perceive as a sudden shift in our understanding of biological sex and gender identities. They assume they are simply returning North Carolina to a simpler time, when gender and biology aligned in a straight-forward way. The fact that no one carries his or her birth certificate, but it is supposes to be the basis of bathroom use, suggests the conviction that this proposition is obvious; in the absence of bathroom monitors checking birth certificates (and people in need of a toilet needing to produce them), the assumption is that gender and biological sex are readily apparent. Along with others who want to return to a mythical past that aligns with their conservative values, this stance reveals ignorance over the fact that gender has been a contested category from the earliest moment of American history.
In 1629, a Virginia Quarterly Court heard a case of indeterminate gender A person known as Thomas Hall, who like many migrants had come to the colony as an indentured servant, was hauled before the court to have his (or her) gender sorted out. The case arose out of a fornication accusation initially. Hall had reported "lain with a woman," a fellow servant, which phrasing implied sexual activity. In investigating, the community discovered Hall's changeable gender identity. In England, she had been christened Thomasine and taught traditional female tasks. At the time the skills a person learned were closely tied to gender, so girls learned needlework, while boys did not. Later, and in keeping with numerous other cases of early modern cross-dressing, Thomasine changed to Thomas and went to fight as a soldier on the European continent. Shifting in this way offered women protection as well as opportunities, and that might have explained Thomasine's transformation to Thomas. Later, upon coming to Virginia, Thomas/Thomasine lived mostly as a man but sometimes slides toward female gender once again.
The older women in the community wanted to know, and they assigned themselves to discover, Hall's true biological sex. The court records contain testimony that suggests they held Hall down and examined his or her genitalia. Although the fact that they were self-appointed was out of the ordinary, a team of middle aged women examining the body of a woman for legal or medical purposes was not unusual. The courts frequently deputized women to explore female bodies for signs of intercourse, pregnancy or witches' marks. If Hall proved a man, though, holding him down and analyzing his body parts was atypical, and even possibly unacceptable. A male community leader tried to settle the case by simply asking Hall, who replied that s/he was both male and female.
Scholars have concluded that biologically Hall was probably an intersex person. A certain number of people are born with genitalia that is neither male nor female. For many years in 20th century American medicine, these babies were silently "repaired" by doctors who chose a sex and operated to bring the infant body more into conformity with expectations. The North Carolina legislators are willfully ignorant of such practices, clinging the idea of male and female verities that others want to upend.
In the end the Virginia magistrates sentenced Hall to signal her/his unusual biology by wearing attire typical of both genders, donning an apron over male attire. This result intended to prevent Hall from moving back and forth between identities at will, by announcing a special category or either/both. When presented with Hall attired (and equipped) as both, what would North Carolina do?