Popular progressive political discourse, fueled by the sloppy legal strategy of LGBT organizations, insists that adding “gender identity” to existing anti-discrimination statutes by legislative amendment is an urgent and necessary legal protection for transgendered and other gender non-conforming people. In fact, however, judicial interpretation of sex discrimination law already prohibits gender-related sex-stereotyping. More than being benignly redundant, the current legislative strategy actually creates a big problem: it defines and positions “gender identity” as a new protected legal class that overrides sex as a preexisting protected legal class. In practice, these classes come to clash in sex-segregated spaces when a single individual’s “gender identity” is prioritized over every other person’s physical and legal sex. I will discuss a particular example of this situation below.
Sex, as a legal category, is important in its own right. “Gender identity” is loosely defined by an individual’s subjective sense of self. Just as female bodies do not have magical ways of shutting down unwanted pregnancies, female humans cannot present, express, or “gender identify” our way out of reproductive exploitation (see: child brides, arranged marriages, femicide, sexual slavery, and rape as a weapon of war). Women’s oppression—globally and historically—operates in large part by knowing and leveraging female reproductive sex whether females conform to the tyranny of gendered norms or not.
Further—and possibly of more immediate concern to women as a class—“gender identity” has been used by certain predatory males to fraudulently break the boundaries of women’s-only or single-sex space. My primary argument here is not that all trans people are insincere or fraudulent, but that embedding basic fraud-prevention measures directly into “gender identity” statutes is necessary for the protection of women’s right to privacy and safety in sex-segregated spaces.
Actively addressing the possibility of fraud, rather than stubbornly insisting that it never happens,[i] will both insulate the larger class of trans persons from negative association with charlatans and, more importantly, it will provide some measure of legal assurance (good faith) that no males will be present in sex-segregated space reserved for females. Indeed, there are similar legal restrictions on claiming the right to non-discrimination protections or accommodations on the basis of religion, national origin, and disability.[ii] Fraud prevention is like due diligence, it’s a no-brainer.
In a previous post, I discussed the unique Improper Purpose exclusions contained within the “gender identity” definitions recently enacted in Connecticut and Massachusetts (my state of residence). Both statutes include legislatively revised exceptions that prevent individuals from claiming “gender identity” protections for a so-called Improper Purpose (my red text):
As far as I know, neither clause has been litigated to establish the meaning or reach of Improper Purpose.
Women’s legal right to sex-segregated public spaces demands that future judicial interpretations weigh women’s need for penis-free environments against the subjective identities of gender non-conforming males. I suggest that Improper Purpose should minimally exclude male individuals from accessing female single-sex spaces or contexts when such male has:
- been convicted of sexual offenses (is a sex offender), or
- been convicted of violence against women, or
- publicly participated in transvestic fetishism or similar sexualization of cross-dressing
When evidence or proof of predatory or sexualized behaviors is established, such male individuals should be summarily excluded from claiming the legal right to violate the boundaries of sex-segregated space under the guise of “gender identity.” I long for the day when both these extremely reasonable legal limitations and women’s natural right to single-spaces is uncontroversial.
The alarming prevalence of sexual assault against women and girls is both statistically and experientially undeniable.[iii] Female vigilance against sexual predation is highly warranted and necessary for self-preservation. Female suspicion in response to male nudity in women’s only space is well-founded (not hysterical) and must not be ethically or legally dismissed in favor of denying that some males’ have an inappropriate and unlawful desire to publicly expose their genitals in spaces that men are generally not allowed to go. Improper Purpose exclusions are basic, not extra.
Women should never have to see or be exposed to a penis in the women’s locker room or bathroom. The law should protect women from indecent exposure in women’s single-sex spaces regardless of the individual’s “gender identity.” From both a public policy and a legal protection perspective, it shouldn’t matter whether any particular man perceives his penis as being offensive, only that a reasonable female observer of his conduct in public sex-segregated contexts would be offended or upset by it, consider it a potential risk to her safety, and/or a violation of her legal right to privacy and freedom from indecent exposure.
Sex and gender identity must not be confused in the law, nor should the subjective concept of “gender identity” be allowed to override sex without incorporating basic fraud prevention measures. The Improper Purpose clause embedded in the legal definition of “gender identity” adopted by Connecticut and Massachusetts represents an important first step towards protecting women’s single-sex spaces from fraudulent intruders and sexual predators. At a minimum, women and girls should have the right to be free from male nudity in all public spaces; this right should be supported by stronger legal protections. In the larger context, women and girls should not have to bear the burden of determining the difference between sexual fetishists, sexual predators, and males who believe they are expressing an alternative “gender identity.”
[i] As in this law review article: Levi, Jennifer and Redman, Daniel, The Cross-Dressing Case for Bathroom Equality (January 17, 2010). Seattle University Law Review, Vol. 34, p. 133, 2010. See page 160, n149. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1986853
[ii] See: Sue Landsittel “Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII.” 104 Northwestern University Law Review1147 (Summer 2010, No. 3). http://www.law.northwestern.edu/lawreview/v104/n3/1147/LR104n3Landsittel.pdf
[iii] See: National Institute of Justice & Centers for Disease Control & Prevention. Prevalence, Incidence and Consequences of Violence Against Women Survey. 1998. See also: Davis, T. C, G. Q. Peck, and J. M. Storment. “Acquaintance Rape and the High School Student.” Journal of Adolescent Health 14 (1993): 220-24.