I’ve always been a fan of those Public Service Announcement, warning drivers not to drink and drive or text and drive. The best ones are from the UK, with slow motion photography to make it clear just how devastating those split-second decisions can be (the moral is, don’t text and drive).
Watching the head-on collision between Sex and Gender Identity unfold over the last 20 years, on the other hand, is more akin to time lapse photography showing the construction of a building. It’s not as dramatic as the car crash PSAs, but at the end, you have a building.
We’re now starting to see the faulty construction that is Gender Identity have a real-life impact on the lives of Women and Girls. This issue is coming to a head in Washington State, where Women and Girls are asserting the right to use sex-segregated facilities free of bepenised Trans Women like Colleen Francis.
Now, it’s a Right Wing Organization that is standing up for Women and Girls; unsurprisingly, they rely on the “perversion” trope that they also use against Gays and Lesbians. Equally unsurprisingly, GLBT and Women’s Organizations continue to look the other way when it comes to confronting and resolving the head-on collision between Sex and Gender Identity.
Specifically, the proliferation of legislation designed to protect “gender identity” and “gender expression” (Gender Identity Laws) undermines legal protections for Women vis-à-vis sex segregated spaces, such as Woman-only clubs, public restrooms, public showers, and other spaces designated as “Woman only.” Women require sex-segregated facilities for a number of reasons, chief among them the documented frequency of Male sexual violence against Women and the uniquely Female consequence of unwanted impregnation resulting from this relatively common form of violence. Public policy, therefore, rationally permits sex segregation in certain settings where a reasonable expectation of privacy exists.
Every state in the United States plus the District of Columbia has adopted a law that bans discrimination based on sex in employment, housing, and public accommodations, among other areas of public life. These “Anti-Discrimination Laws” stand as evidence of a public policy statement against irrational discrimination, which has no place in a free and open society. However, each of these Anti-Discrimination Laws also preserves an exception to the general policy against discrimination with regard to sex-segregated facilities. These exceptions operate as an admission by that state that Women have an interest in sex-segregated facilities. That is, the government recognizes that Women and Girls have an interest in having space away from Males where Women and Girls might expect privacy.
Despite the distaste I have for the messenger in the Colleen Francis case, I have to agree with the message – the right of Women and Girls to be free from the Male gaze in spaces where we have a reasonable expectation of privacy is violated by Gender Identity Laws. The lawyers for the Women and Girls have relied on varying theories supporting their claim that Colleen Francis has no business in a Women’s locker room, including the assertion that the showing of his womanly penis in the Girl’s locker room violated criminal laws against indecent exposure and that the college violated its duty to keep its premises “reasonably safe” (a theory sounding in tort law) by allowing him into the space. The lawyers also mention the 14th Amendment, stating that the college potentially violates the rights of Women and Girls by knowingly placing them in danger.
What the lawyers do not assert, however, is that the enactment of these laws in and of themselves constitute a 14th Amendment violation. That is, Sex is a characteristic afforded protection under the 14th Amendment, and in order to pass a constitutionally valid law that impacts this characteristic, the State must prove (1) the existence of specific important governmental objectives and (2) the law substantially relates to the achievement of those objectives. This level of scrutiny is called the Intermediate Level of Scrutiny.
If courts applied the Intermediate Level of Scrutiny to a challenge by Transgender Advocates against sex-segregated facilities, Government would probably assert that it has an interest in protecting Women and Girls from documented Male Violence, and that the law allowing sex-segregated facilities substantially relates to the achievement of that objective. It’s telling that Transgender Advocates don’t assert this claim – because, I suspect, they would lose.
The U.S. Supreme Court first came up with the Intermediate Level of Scrutiny in the case of Craig v. Boren, in which the court examined an Oklahoma law that established a drinking age of 21 years old for Men and 18 years old for Women. The court concluded that “Oklahoma’s 3.2% beer statute invidiously discriminates against Men 18 to 20 years of age.” Hooray for beer!
So, what if Women and Girls asserted that Gender Identity Laws themselves violate their rights under the 14th Amendment? The Women and Girls would assert that these laws jeopardize their right to sex-segregated accommodations, thus depriving them of protection under the law. Those seeking to uphold Gender Identity Laws would have to show that the enactment of Gender Identity Laws helps achieve specific governmental objectives and that the law substantially relates to the achievement of those objectives.
What does this mean?
Transgender Advocates might say that government enacts Gender Identity Laws for the purpose of combatting discrimination against Transgender people and that Gender Identity laws substantially relate to the achievement of the elimination of discrimination.
Is this provable? Currently, Transgender Advocates seek redress under several theories – they push for Gender Identity laws while at the same time asserting claims for Sex discrimination. Which is it, Transgender advocates? Is it Sex or Gender Identity? And if it is provable, what of the counter argument – that Gender Identity Laws harm Women and our rights. It seems Sex is more meaningful a characteristic in courts than Gender Identity would be – my odds are on Sex winning.
That is because of the level of scrutiny would courts apply to Transgender people. When Gays and Lesbians assert that a law violates our constitutional rights, courts apply rational basis scrutiny to the claim. That is, the governmental action must “rationally relate” to a “legitimate” government interest. Trans would likely fall into the rational basis bucket – because, again, if Transgender Advocates could successfully assert that there’s no rational basis for sex segregated facilities, one wonders why they haven’t done so.
Whatever the outcome, it is interesting that it’s Right Wing Organizations that are the ones standing up for Women and Girls; and it is horrendous that the Faux Liberal Women’s and GLBT Organizations have completely abandoned Women and Girls in this inquiry.
It will be as fascinating as a don’t text and drive PSA to see how this unfolds.