Political Philosophy and the Bathroom Wars

Earlier this month, when she announced that the Obama Administration was filing a lawsuit against North Carolina over its “bathroom bill,” Attorney General Loretta Lynch traversed a significant portion of the history of political philosophy within a few short paragraphs. I’m quite confident that she didn’t mean to do so, and I’m sure that she isn’t altogether aware of the issues she raised. But raise them she did, thereby offering us the opportunity to get beyond the controversies of the moment and examine some of the deeper reasons for our current predicament.

Early in her statement, Lynch said that the governor and North Carolina legislature “created state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security—a right taken for granted by most of us.” Just a few paragraphs later, she added:

This action is about a great deal more than just bathrooms. This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them—indeed, to protect all of us. And it’s about the founding ideals that have led this country—haltingly but inexorably—in the direction of fairness, inclusion and equality for all Americans.

I’ve italicized the most telling expressions.

In the first passage, “safety and security,” Lynch speaks in the language of Thomas Hobbes and John Locke, the greatest exponents of classical liberalism. For them, the purpose of government is to guard against the predations to which we’re vulnerable in “the state of nature,” where life is, as Hobbes famously put it, “solitary, poor, nasty, brutish, and short.” A state that provides security gives us what we most need, enabling us to pursue our happiness wherever and however we will, so long as we don’t harm others along the way.

How this applies to bathrooms is clear enough: we all want privacy (or, as a toddler I knew once put it, “private seat”). We can all have it, if the state mandates that men use public men’s rooms, women public women’s rooms, and those of nonconforming gender identity use a separate space. North Carolina’s law squarely conforms to these requirements, while properly leaving actors in the private sector to make their own choices about both offering and using facilities. So it’s unclear, on these grounds, what could be the complaint.

Human Dignity, from Rousseau to Kant

In the second passage, Lynch uses the language of human dignity, which developed initially as an attempt to overcome the perceived shortcomings of the low, but solid, concerns of classical liberalism. Following in the footsteps of Jean-Jacques Rousseau, a number of thinkers articulated a penetrating critique of this concern with mere security.

Rousseau argued that our most powerful longings can’t be satisfied simply by protecting us from predators. Indeed, we seek what is ultimately impossible—that others think as well of us as we do of ourselves. We want others’ esteem, not just to be left alone in safety and security. This desire is a prescription for enduring and irresolvable conflict, and those most devoted to winning will be the least happy with the solution proffered by Hobbes and Locke. Rousseau’s political solution—subsuming individuality in a new version of “Spartan” citizenship, in some measure displacing the conflict from the domestic to the international arena—was discredited by the French revolutionaries’ cruel and extreme attempt to put it into practice.

But Immanuel Kant saw a way of both universalizing Rousseau’s suggestion and largely depriving it of its proto-totalitarian implications. We are indebted to him—for better or worse—for the language of human dignity. According to Kant, we are required to respect all our fellow human beings as “ends in themselves,” as moral beings capable of autonomy. Our moral self-legislation—the literal meaning of “autonomy”—leads us to treat one another with respect, which is an egalitarian way of satisfying everyone’s seemingly impossible desire to be first. This apparent paradox—that everyone can be “first”—is, so to speak, resolved by locating dignity not in some accomplishment (such as winning a competition) but in a moral freedom that infinitely transcends mere nature and thereby subjects that nature to rational regulation. According to Kant, we do not conquer nature merely to be safe from predators but also to create a “kingdom of ends,” a world that reflects and embodies our moral autonomy. In this way, we address both our “spiritual” and our physical needs.

The strength of Kant’s argument is that he never loses sight of the complicated interplay between our moral and our physical natures. While our morality is a product of what he calls our “practical reason,” it addresses itself to men and women with bodies. Consequently, it is constrained by the limits of our natures. For Kant, we are not simply abstract moral and rational beings; we love, we suffer, and we want as men and as women. The most difficult task is to acknowledge our embodiment along with our practical reason. Our duties are the duties of particular human (rational) beings in particular situations.

The weakness of Kant’s argument is that it leaves an opening for those who believe that nature is merely matter, to be shaped into whatever form “reason” demands. Rather than offering limits or constraints within which we must live and act, nature can be regarded as just an obstacle to be overcome. What Kant remembers, but seems to permit his successors to forget, is that reason is always embodied, that it is always yoked to a particular person with particular desires. Those desires have to be disciplined by reason.

Kant’s successors are prey to two often connected temptations. One is to lose sight, in the name of reason, of our naturally constrained particularity. We see, for example, the abstraction of personhood replacing the concrete particularity of manhood and womanhood. The other temptation is to mistake what we desire for what reason requires. Rather than overcoming the problem that Rousseau identified, we magnify it. We regard what we want not as an idiosyncratic personal desire that has to be disciplined but as something that no rational being can deny us. We see this in the toxic combination of identity politics and hypersensitivity to “microaggressions” that has made so many college campuses minefields in which no “reasonable person” would dare to tread.

This mistaken understanding of dignity is what Loretta Lynch invokes in her statement. The notion of respect she calls upon is rhetorically powerful, but it’s in service of a self entirely unconstrained by natural limits. Let’s call her conception “transhuman” (rather than human) dignity. There are other problems with her formulation—above all, that dignity is something we ascribe or accord to others, rather than something we inherently have—but canvassing them is beyond the bounds of this essay.

The Christian Alternative

We must find a way of talking about dignity that doesn’t give free rein to our desires and imaginations at the expense of a sober recognition of our human nature. Perhaps we could simply return to the classical liberalism of Hobbes and Locke, but I don’t think that this will do. It is reductionist, treating us as “mere bodies” and not adequately addressing our imaginative or spiritual needs. This is simply not humanly satisfying, and it will continue to be subject to the sorts of undisciplined rebellions we are currently experiencing. Clearly, Kantianism won’t do either. The temptation of proud rationalists to let go of natural constraints is simply too hard to resist.

Fortunately, both classical liberalism and Kantianism offer a clue as to where we might find a less problematic foundation for talking about dignity. From time to time, Hobbes, Locke, and Kant use the language of religion—above all, Christianity—to offer culturally accessible support for their arguments. But I don’t think they improve upon the truths about human dignity embodied in the tradition they appropriate. To be created in God’s image—but not to be gods ourselves—both recognizes our dignity and acknowledges our constraints. As J.R.R. Tolkien so aptly put it, at most we are “sub-creators” who must conform ourselves to the divinely created nature we are imitating and stewarding. And, as scripture reminds us, we are always prey to the temptation of sinful pride.

I harbor no illusions that this genuinely sober conception of human dignity will prevail in our culture. Yet its “unpopularity” does not detract from its truth, or from the clarity that we can gain by understanding it.