Finding the ‘Third Way’ on the ‘Bathroom Bill’

A couple of weeks ago, a woman testified before the House Education Administration and Planning Committee against the so-called “bathroom bill” with an emotionally compelling but logically self-contradictory argument. I do not question her intentions, but her argument reflects a way of thinking that, when embraced, makes all decision-making impossible. We saw the fruit of this kind of thinking in comments some legislators made when they had to vote on the bill Wednesday.

She argued that we had to move past binary thinking; her point was that we don’t need to think of sex as male or female based on biology. Binary thinking simply means that things that are one way are not another way. Up is not down or, as philosophers would say, “A is not non-A.”

Trying to Apply Non-Binary Thinking to a Binary Situation

The problem with her argument was that it was binary in nature. She did not argue in favor of only unisex bathrooms and single-user locker rooms. Rather, she argued that a person should be able to choose between the male bathroom/locker room and the female bathroom/locker room. That is a binary choice; that is binary thinking. She was not really arguing that there is no difference between the sexes (which would be non-binary thinking), but that the difference is psychological not biological (which is a binary way of thinking about sex).

It seems to me that true, logically consistent, non-binary thinking would assert that we should only have multi-use facilities for all persons to use. That argument would truly reflect the idea that there is really no difference between the sexes, a true non-binary way of thinking about sex. But very few people are ready to embrace that idea yet.

Even the businesses that are now saying the bathroom bill is discriminatory and that they are against all discrimination probably have either single-user, unisex bathrooms or bathrooms designated for use by male or female in their facilities. Probably very few, if any, have open sex multi-user bathrooms and showers. They discriminate, but they do so based on psychology not biology. And they for sure discriminate against the man who just likes to use showers and restrooms used by women!

Making an Either-Or Legislative Decision

Speaking in favor of non-binary thinking and non-discrimination is easy; living as if we don’t have to make choices and don’t have to discriminate is what is hard. This really becomes a problem when you are a legislator.

This Wednesday, when the bill was before the committee for a vote, some legislators said there had to be a better way to solve “this problem” than the way the bill solves the problem. But, as I told them, that’s just not really possible when you think about what the underlying issue is.

Legislators must decide between letting young people choose the bathroom they want to use based on their biological sex or based on their “psychological sex.” They must decide whether a boy who thinks he is a girl can use a bathroom used by biological girls or not. There is not a non-binary, third way.

Some legislators are mad at me because I seem to have put them in the position of making a tough choice, one that some constituents will like and other constituents won’t like. But that is just the nature of things; just the way God made the world. Perhaps they’re just really mad at Him for making them choose, something He’s “forced” on us since the Garden.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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