Bathroom Bills Are About Civil Rights, Not Sex Offenders

06/02/2016 12:21 pm ET Updated Jun 03, 2017

Massachusetts passed historic legislation yesterday protecting the rights of transgender people. But the fight continues in other states.

First of all, I misuse the phrase 'bathroom bill.' This is a bill about civil rights and all public accommodation. A lot has been said and written about the concern over sex offenders using transgender public accommodation laws to gain access to use a public bathroom for improper use. I think this is largely the result of two things. The first is to search for reasons to oppose so-called bathroom bills due to an underlying discrimination against transgender people. And second, a fundamental misunderstanding of how sex offenders do and do not operate. For the sake of limited word space, I will discuss safety of children.

Excluding internet sex offending, there are generally speaking two typologies of child sex offenders described by the Department of Justice.

One of the first typologies was formulated from the delineation of pedophilic and nonpedophilic child sexual abuse. Groth, Hobson, and Gary (1982) classified child sexual abusers based on the degree to which the sexual behavior is entrenched and the basis for psychological needs (fixated-regressed typology). The fixated offender prefers interaction and identifies with children socially and sexually (Simon et al., 1992). These individuals often develop and maintain relationships with children to satisfy their sexual needs (Conte, 1991). In contrast, regressed child sexual abusers prefer social and sexual interaction with adults; their sexual involvement with children is situational and occurs as a result of life stresses (Simon et al., 1992). The majority of fixated child sexual abusers are individuals who sexually assault male children who are not related; regressed child sexual abusers often consist of incest offenders or offenders who sexually assault female adolescents (Priest & Smith, 1992). The fixated-regressed typology has been incorporated into the current models of sexual offending (e.g., self-regulation model; Ward & Hudson, 1998, 2000) discussed later in this chapter.

Pedophiles are people who have a clinical psychological disorder that is a sexual attraction towards prepubescent children. Acting out on these attractions is criminal. A pedophile who acts out does so in a way that develops a trusting relationship with the child and even child's caregivers. They then exploit that relationship of trust. They violate it and abuse the child. This is most often a same sex offense. This is not done as a crime of opportunity in a public restroom; it is a trusted relationship. A crime of opportunity in a public restroom isn't likely to be done by a pedophile; it just isn't how they operate.

The second category is the regressed child sex offender. While normally they have adult relationships, at times this type of offender typically targets opposite sex victims and as a crime of opportunity with little premeditation. Pretending to be a transgender woman to gain access to a bathroom to abuse a little girl requires premeditation and planning, getting specific clothing and dressing a certain way, and selecting a target location and victim. This typology also does not fit into bathroom crimes under the guise of being a transgender imposter.

There is no evidence that sex offenders, broadly speaking, are using transgender public accommodation laws to commit crimes. For example, the Massachusetts Joint Committee on Judiciary found that since 1993, over the 17 states and Washington D.C. (and the 13 towns and cities that make up 20% of the state's population in MA) where transgender public accommodation is the law, there is no body of evidence that supports that child sex offenders use bathrooms to target children under the guise of being transgender, which makes sense; the typologies would not predict it.

Now, we could have someone who doesn't fit into either typology abuse a child in a bathroom but that is a rare case and improbable, not impossible. We do not legislate on the improbable. If we did we would over legislate, a charge that many people think is already true but would be far worse if we actually did seek to legislate the improbable.

What about a voyeur? A voyeur may try to dress up as a woman to gain access to a woman's restroom, and they have. However, that is done with or without transgender public accommodation laws. If someone is caught breaking the law being a voyeur, claiming to be transgender offers no protection to voyeurism. So it makes no sense to say that transgender public accommodation should be denied because someone else may do something wrong.

Too often, I hear opponents say that "a man who is transgendered entering a woman's room is wrong." Well it is wrong to say that because 1) they are not "transgendered" they are transgender; 2) a man who is transgender is not a man, she is a transgender woman with a penis; and 3) it is a fundamental misunderstanding of what it means to be transgender to call said person a man. Gender identity is more than anatomy. It is core and central to who we all are. Core aspects of someone's identity like gender identity regardless if you are transgender or not should be and often are protected under the law. Calling someone a "man who is transgender but dresses as a woman in the restroom or locker room" is ignorance at best and hate speech at worst. A transgender woman who has a penis is a woman. A transgender man is a man without a penis. Gender is more than what is below the belt. Gender identity is more than anatomy for both transgender people and ordinary people.

Ignorance and hate individually or together both lead to fear. Fear as a motivator for action often leads to fear mongering. That is why intentionally or unintentionally, raising concerns about sex offenders targeting children as a reason to oppose transgender public accommodation is fear mongering.

Lastly, and perhaps most importantly, we should never deny someone civil rights protections because someone else may do something wrong. That would be wrong.

Paul Heroux is a state Representative from Massachusetts on the Joint Committee on Public Safety and Homeland Security. He has a background working in jail and prison and can be reached at PaulHeroux.MPA@gmail.com.