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the McBride situation aside, these bills are nothing more than performative measures meant to publicly express disgust with the idea of trans people in general. They do nothing to actually keep trans people out of whatever bathroom you're trying to keep them out of, excepting whatever mild deterrent effect comes out of making something technically illegal. What would it take to successfully prosecute such a case? Suppose a woman sees someone she suspects is a trans-woman in a public restroom. What can she do? The first option would be to alert the staff, who may or may not care to do anything about it. Eventually, the police will have to be called by someone. Assuming the police arrive and the suspected man is still on the premises, to what extent does a person have to look masculine enough for it to constitute probable cause for arrest?
You might argue that the officer could ask them to produce ID, and if the sex was listed as male this would give them probable cause (states with bathroom bills generally require the sex on ID to match that of the birth certificate). While the cop may have a valid argument that he had the requisite reasonable suspicion necessary to require identification, identification in this context is limited to providing a correct name, address, and date of birth; producing a government-issued ID is not required. At this point, there's no probable cause to arrest. There's no probable cause to get a warrant for a medical examination.
The only option at this point would be to run the name and dob through various government databases to determine if the sex listed in the records matches that of the bathroom they were in. But nobody is doing this. And even if they did, it isn't necessarily dispositive, since the person could have been born in a state that allows amended birth certificates. Given that police can't just look at people's genitals based on a complaint alone, actually enforcing such a law would be burdensome to the point that it's unenforceable absent some extraordinary circumstance. Even the state officials supporting these bills, when asked about enforcement, admit that they have no clue.
If the trans community were smart, they'd stop complaining about these bills and shrug them off. Red state legislators know that the bills are unenforceable, but they pass them anyway. I think their motivations are partially sincere, but partially cynical—trans issues are an electoral loser, and passing these laws induces their opponents to take unpopular positions. If the trans community simply announced that they had no intention of complying because the state couldn't do anything about it anyway, it would put increasing pressure on the government to actually attempt enforcement. there would likely be few prosecutions, if only due to a dearth of complaints, but one can imagine a situation where the only arrests of note are of normal women who are mistakenly believed to be trans. This would result in a PR disaster that doesn't require any Democrats to take unpopular positions.
Agreed, but that's kind of the problem here - the trans community has not been smart, and instead doubles down defending bad actors (or denying they exist).
Had trans women limited themselves to peeing in peace, you might have had an occasional Karen freaking out seeing someone who looks like a man in the women's restroom, but most people wouldn't have cared. My recollection is that this wasn't an issue for many years. Trans women have been around since long before the current iteration of the culture wars. Why do you suppose suddenly they are a major front in the culture war? I don't think it's because conservatives suddenly discovered they exist.
I agree with the general thrust of your argument- there were transgenders in the ‘90’s and while it wasn’t acceptable among cultural conservatives nobody cared that much- but trans issues got big all of a sudden partly because Chris Rufo was able to magnify some high profile cases of trans making progressives look bad and republicans won a governors race in a blue state out of it.
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You're not wrong, but I think it's several reasons:
Even without the bad actors issue, I think this would be a major CW front. Maybe bathrooms specifically wouldn't be as big of a flash point, but there was always going to be something.
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Okay, so you have crafted a hypothetical situation where police wouldn't have probable cause to arrest a person who is guilty? Now what?
This doesn't mean the law is unenforceable, it doesn't even mean this law is special. There are dozens of laws which are hard to prove, especially when not witnessed by a cop, and sometimes the cop goes to investigate it starting with a "voluntary" talk and the person doesn't given them the necessary evidence for there to be probable cause for arrest despite that person being guilty. Are those other laws unenforceable, despite hundreds of people being arrested and prosecuted for them daily in the US?
What constitutes probable cause for a search, arrest, detention, etc. if a cop smells marijuana? Well, how much of a smell? What kind of smell? From where was the smell? Funny enough, all of these quandaries were answered and guidelines were produced as to what was enough to constitute various standards of suspicion. Institutes of serious training were created so officers could get a certificate of expertise in the smelling of drugs.
It turns out the court system is capable of coming up with answers, however unsatisfactory, to answer this sort of string of questions which look more like an attempt to overwhelm to stop them from trying as opposed to informing. These aren't actually hard questions to answer and enforcement of such a law could be just like every other law which is regularly enforced all over the country. All that is necessary is the will to expend resources to enforce them.
Whether or not these laws or weed laws are stupid is another question, but it hardly makes these laws special or these questions some sort of unique hurdle for enforcement.
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My grandfather, back during segregation, conspicuously used the colored bathroom many a time. Nothing was ever done because no one gave a shit(it, uh, might have been different the other direction, but a wage slave at a store has Better Things To Do than get in a confrontation with a customer so lots of them presumably got away with that too- I think some of the segregation cases involved blacks who got away with using the white section over and over again before anyone called them on it).
Of course the real benefit to these laws from a red state perspective is it makes it impossible for blue cities to force bathrooms to be gender neutral.
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