Bench Memos

Law & the Courts

Transgender Public-Accommodations Agenda on Bathrooms, Locker Rooms, and Showers

The transgender agenda on bathrooms, locker rooms, and showers is, of course, not being pursued only by the Obama administration. Various states and localities are also seeking to impose it. Indeed, because federal law does not prohibit discrimination on the basis of “sex” in public accommodations, the Obama administration is unable to extend its flagrant misunderstanding of that concept to the facilities that businesses make available for their customers. So state and local bureaucrats have been the first aggressors in that realm.

Consider this recent guidance from the Washington State Human Rights Commission, part of the “scourge” of similarly named entities that, as Mark Hemingway has explained, have “devolved into bureaucratic star chambers with the power to ruin your life and run you out of business.”

In 2006, the state of Washington added “sexual orientation” to its list of protected classes under its general anti-discrimination law, and it defined sexual orientation to include “gender expression or identity.” But not until last November did the state Human Rights Commission adopt a new set of rules requiring businesses to make their “restrooms, locker rooms, [and] dressing rooms”—yes, explicitly including “facilities where undressing in the presence of others occurs”—available to a person “consistent with that individual’s gender expression or gender identity.” Never mind that sex-segregated facilities clearly do not discriminate on the basis of gender expression or identity. The commission dodged the fundamental incoherence in its rules by mischaracterizing existing facilities as “gender-segregated” rather than sex-segregated.

In its guidance, the commission makes plain how broad its rules are:

In a public accommodation situation, the rules apply to all places of public accommodation, including (but not limited to) schools, gyms, public facilities, stores, restaurants, and swimming pools, and the gender segregated facilities within those places of public accommodation.

In short, men who identify as women can now go into women’s bathrooms and locker rooms in all those places (and vice versa for women who identify as men). But don’t expect the commission to speak plainly about this. Consider this Orwellian masterpiece:

Q: Can men now go into women’s bathrooms or locker rooms?

A: No. Only females can go into women’s bathrooms or locker rooms in a gender segregated situation. This includes transgender females who identify as female. [Emphasis added]

“Transgender females” is, of course, the transgender term for men who identify as female. So the straightforward answer to the question would be: “Yes, if the men identify as female.” (The commission’s phrase “transgender females who identify as female” is redundant, I would think. Or is there now some subset of “transgender females” who don’t “identify as female”?)  

Even better is the commission’s oh-so-helpful advice about how a business “can know if someone is really transgender or is just pretending to be transgender in order to gain access to gender segregated facilities”:

A: The rules do not prohibit asking legitimate questions about a person’s presence in a gender segregated facility. It is suggested that these questions be asked in a polite and nonconfrontational manner. In addition, it is extremely unlikely that someone who is pretending to be transgender, and who is ejected from a facility, will take the steps of filing a complaint or a lawsuit against that facility. If they do so, then the investigation conducted by an enforcement agency will uncover the fact that the person was not being honest about their status, and thus is not protected under the law against discrimination. Any individual who fraudulently claims to be transgender for the purpose of entering a gender segregated facility in order to engage in illegal activity may also be subject to criminal prosecution. [Emphasis added.]

In short, if a complaint is filed against you after the fact, that’s a fairly reliable way to know that the person whom you questioned wasn’t “just pretending to be transgender.” Gee, thanks for the clear operational guidance. (As it happens, University of Virginia professor Steven E. Rhoads has an essay in the new issue of the Weekly Standard on “The Transgender Locker Room” that includes some incidents from Washington state.)

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