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Law & the Courts

When Trans Activism Empowers Sexual Harassment

Signs at a protest against the Trump administration’s reported transgender proposals at City Hall in New York City, October 24, 2018. (Brendan McDermid/Reuters)

Over on the home page, my colleague Madeleine Kearns tells the disturbing story of Canadian trans activist, Jessica Yaniv, a Canadian biologically-intact man who identifies as a transgender woman and who is trying to legally coerce beauticians into waxing his scrotum. Yes, you read that correctly: He’s trying to force unwilling women to handle his genitalia.

Madeleine covers the facts of the case very well. I’d like to focus a bit on how the edges of trans activism can put extraordinary strains on the law, placing elements of nondiscrimination statutes into irreconcilable conflict. The Yaniv case is an extreme example, and one would think that thoughtful trans activists would oppose the idea of forcing women to handle a scrotum, but let’s look at mainstream American Democratic policy. Let’s look at the conflict between Title IX, Title VII, and the Equality Act, a bill the Democrats passed through the House in May (so far, it’s going nowhere in the Senate.)

The Equality Act bans discrimination on the basis of sexual orientation and gender identity in a host of areas, including education, the workplace, and public accommodations. In practice, the Equality Act would operate a lot like the Obama administration’s May 13, 2016 joint statement from the Department of Justice and the Department of Education extending gender identity protections into Title IX. Here’s how I described the legal effect of the statement:

According to the Obama administration, schools will now be required to police speech regarding gender identity. School officials are required not only to refer to students by their chosen gender but also, through expansion of nondiscrimination policies, to maintain an “environment” that the administration deems sufficiently “safe,” “nondiscriminatory,” or even “supportive.” This will necessarily require regulating student speech as well. Additionally, the letter not only grants opposite-sex access to locker rooms (including showers), it requires schools with single-sex dorms to allow men access to women’s dorms and to make other “overnight accommodations.” So when schools are arranging accommodations for overnight school trips, boys will be entitled to sleep in the same hotel room as girls.

Think about this for a moment. Under Title IX, schools have an obligation to protect students from sexual harassment. Forcing girls into a position where they would be likely to view male genitalia — whether it be in showers, locker rooms, bathrooms, or overnight accommodations would constitute a textbook Title IX violation. Women should not be required to view male penises — outside of contexts like biology or health classes — as a condition of receiving an education. But under the Obama guidance (and the Equality Act) a girl could not only be required to see a “female penis,” the very act of objecting to the sight could itself be considered to create a hostile environment for the trans girl. And while adults in the workplace are different from children at school, even adult women should have a right not to be subject to the unwelcome sight of male genitalia at work.

Sensible school officials (and sensible employers) — when faced with these kinds of challenges — should be free to reach common-sense solutions and compromises. Some schools have let trans kids use faculty bathrooms or other private facilities, recognizing that in the real world tossing them back into the bathroom or locker room that matches their biological sex could lead to embarrassment or harassment. Employers and public accommodations have made bathrooms more private, providing stalls for everyone. But the Equality Act (and the Obama administration’s 2016 joint statement) would in some circumstances render common-sense, individualized solutions unlawful. If a trans girl is to be treated not as “trans” but as indistinguishable from a biological girl, then there is no room for distinction.

As nondiscrimination regimes expand, they will inevitably start to conflict. Today I wrote about how employers who are taking great care to ensure that progressive employees (including LGBT employees) aren’t exposed to dissenting ideas are now violating federal laws prohibiting religious discrimination. In the trans context, laws prohibiting gender identity discrimination will conflict with laws prohibiting sex discrimination and even sexual harassment. When the law requires an unwilling woman to see (much less handle) male genitalia, then the law has lost its mind.

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