Advanced topics in “gender identity,” male nudity, and fraud prevention

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. Whereas Sex is the necessary legal foundation for the protection and maintenance of women’s reproductive freedoms, “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 leveraging female reproductive Sex whether females conform to the tyranny of gendered norms or not. Female autonomy requires that our laws recognize the reproductive consequences of biological Sex. For this reason alone, females cannot afford for “gender identity” to override the legal definition of Sex.

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 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 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 to females 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.

IMPROPER PURPOSE

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 interpretation weigh women’s need for penis-free environments against the subjective identities of gender non-conforming males. Improper Purpose should minimally exclude individuals: (1) convicted of sexual offenses or (2) convicted of violence against women, as well as those who have (3) publicly participated in transvestic fetishism or similar sexualization of cross-dressing. When evidence of these transgressions is established in a court of law, such individuals should be summarily excluded from claiming the legal right to violate the boundaries of sex-segregated space under the guise of “gender identity.” This should not be controversial.

CERTAIN SHARED FACILITIES

As another example of placing reasonable restraints on the use of “gender identity” to override Sex, the proposed federal Employment Non-Discrimination Act (ENDA) of 2011[iii] contains an exception that, in certain contexts, would allow an employer to offer similar but different accommodations without being in violation of the non-discrimination law. From Section 8 of the proposed legislation (my red):

(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.

Common sense and shared expectations of privacy demand some limitation on the exposure of naked male bodies in female-only spaces. All contexts in which being seen unclothed is unavoidable and expected behavior should necessarily be governed by stricter “gender identity” guidelines than spaces where males and females mingle freely, such as in restaurant dining areas, concerts, and county fairs.

ADVANCED APPLICATION OF FRAUD PREVENTION CONCEPTS

Colleen Francis, the State of Washington, and “risk”

I’ve been following the media’s coverage of Colleen Francis’s naked intrusion into women’s Sex-segregated locker room space with great interest over the past several weeks. Francis is an intact male. Although he was confronted by the Evergreen Swim Club’s coach and a police report was filed on September 27, 2012, Francis continued to insist that he is entitled to expose his penis to other women in the women’s locker room. The local district attorney has refused to press charges against Francis under Washington State’s indecent exposure statute (Wash. Rev. Code § 9A.88.0 10).[v] On November 1, 2012, The Alliance Defending Freedom (ADF) issued a formal notification to Evergreen State College regarding the school’s potential liability for statutory violations relating to Francis’s use of the women’s locker room facilities.[iv] But a conviction for indecent exposure would require proving that Francis subjectively and “intentionally ma[de] any open and obscene exposure of his or her person … knowing that such conduct [wa]s likely to cause reasonable affront or alarm.” If we assume, as the district attorney clearly has, that Francis has an affirmative right to be in the women’s locker room on the basis of his subjective “gender identity,” an indecent exposure prosecution would be nearly impossible because Francis’s nudity is consistent with normal usage of the facility.

I want to suggest an alternative legal theory that might successfully exclude Francis, and/or other biological males like him, from relying on their “gender identity” to gain access to women’s-only public spaces in the state of Washington. This could be done by leveraging an exception contained within the non-discrimination statute itself to exclude him before he can establish a right to be in the space to begin with.

First, the Revised Code of Washington dictates that “sex” means gender.[vi]  Sex is literally the same as gender according to the laws of Washington. This is semantic sloppiness[vii] of mind-boggling proportions. The legislature should correct this before anything more embarrassing transpires. In the meantime, the public accommodations statute currently accounts for the possibility that certain behavior or actions constituting a risk to others may be disallowed without creating a violation of the law (my red text and underlining):

Wash. Rev. Code § 49.60.215[viii]
Unfair practices of places of public resort, accommodation, assemblage, amusement — trained dog guides and service animals.

(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.

To repeat: “PROVIDED, That behavior or actions constituting a risk to…other persons can be grounds for refusal and shall not constitute an unfair practice.” [ix]

This exception makes room for an argument that turns on the other patrons’ reasonable apprehension of risk rather than on the idiosyncratic mental state of the actor who presumes that he is entitled to access the public space. Instead of waiting for a crime to occur, interrogating an actor’s subjective intent from a criminal perspective, and/or trying to prove that someone has sustained demonstrable damages, one would merely show that certain behavior creates an objective and/or apparently legitimate risk to the other persons in the space. This approach shifts the focus from the actor’s intent to the perception of risk that the actor’s behavior creates in the minds of reasonable observers.  If the behavior itself constitutes a risk to other persons, refusing the actor access to the facility is not an unfair practice under this statute.

Misconduct

In Francis’s case, he has a history of engaging in sexualized public behavior on the internet. This evidence supports a characterization of him as a sexual exhibitionist, behavior which should be legally categorized as an Improper Purpose for claiming right to access Sex-segregated locker rooms on the basis of an ambiguously defined “gender identity.” There is no Improper Purpose exclusion, however, in Washington. So we must argue that Francis’s behavioral decision to defiantly expose his penis combined with his subsequent callous indifference to how this would likely be perceived by others, including underage girls ranging from ages 6 to 18, is exhibitionist conduct that qualifies as the kind of risk envisioned by Wash. Rev. Code § 49.60.215. Francis’s naked penis in a Sex-segregated space for women objectively threatens women and girls’ rights to privacy and safety. As such, Evergreen College should be well within their rights to refuse Francis admission to Sex-segregated spaces where he now has a documented history (see police report) of recklessly exposing his genitals to unsuspecting women and girls.

Willful Nudity

Further, supposing that Francis didn’t have this history of public misconduct, his biologically male presentation alone should arouse reasonable apprehension in the minds of average female observers—especially when minors are present— that his unyielding nudity in a women’s-only locker room is lascivious, rather than innocent, and that it constitutes an imminent risk to their safety. Significantly, Francis has publicly stated that he likes and does not want his penis removed despite his demand that his “gender identity” legally requires everyone else to consider him “female.”[x] It is both inappropriate and unreasonable to expect underage girls to accept any man’s naked penis in their private changing space as “female” or as normal. This is the exactly the kind of public safety concern/state interest that likely informs ENDA’s Certain Shared Facilities exception.

Being unclothed is a state of vulnerability for females. The alarming prevalence of sexual assault against women and girls is both statistically and experientially undeniable.[xi] Female vigilance against sexual predation is highly warranted and necessary for women’s self-preservation. Female suspicion in response to male nudity in women’s only space is well-founded (not hysterical) and must not be legally disregarded in favor of indulging any males’ gendered whimsy and desire to unconditionally expose their genitals in spaces that men are generally not allowed to go. Women should never have to see or be exposed to a penis in the women’s locker room. The law should protect women from indecent exposure in women’s spaces regardless of the individual’s “gender identity.” From both a public policy and a legal protection perspective, it shouldn’t matter whether Francis (or any other man) perceives his penis as being offensive, only that a reasonable female observer of his conduct in public Sex-segregated contexts would be offended by it and consider it a risk to her safety and/or a violation of her legal right to privacy and freedom from indecent exposure. Consistent with ENDA’s Certain Shared Facilities exception, Washington’s statutory risk exclusion should prohibit biologically intact males from exposing their genitals to women in women’s-only space.

CONCLUSION

No matter how compassionately one may feel towards individuals suffering from the emotional pain of severe gender dysphoria, Sex and gender are fundamentally different states of being. They must not be confused in the law, nor should the subjective concept of “gender identity” be allowed to override Sex without incorporating some reasonable limitations and fraud prevention measures. The Improper Purpose clause legislatively embedded in the “gender identity” laws of Connecticut and Massachusetts is an important first step towards protecting women’s-only Sex-segregated spaces from fraudulent intruders and sexual predators. The Certain Shared Facilities provision of the proposed ENDA legislation offers another reasonable restriction on the conflation of “gender identity” with Sex by ensuring that women’s right to penis-free changing space is both acknowledged and preserved.

Some limitations, including basic fraud prevention measures, are necessary legal elements of any legislative strategy designed to protect “gender identity.” At a minimum, women and girls should have the right to be free from male nudity in all public spaces and 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

[vi] Wash. Rev. Code § 49.60.040(25) http://apps.leg.wa.gov/rcw/default.aspx?cite=49.60.040

[ix] See discussion about the medicalization of gender non-conformity as a legal strategy and what constitutes a disability by Jennifer Levi here: http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1025&context=facschol 15 Colum. J. Gender & L. 90 (2006). Consider this framing of “gender identity” in light of the statute’s specification that “this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law.” Also note that transsexuality is not recognized as a disability under the federal American with Disabilities Act.

[xi] 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.

_________________________________________________

PDF for your friends

16 comments

  1. Reblogged this on GenderTrender and commented:
    Brilliant, incisive legal analysis of the issues involved in the Colleen Francis Evergreen College case, Washington State statutes and the problem with “Gender Identity” protections overriding sex-based legal protections for Women. Also applies to the Robert/Michelle Kosilek case. Must read.

  2. Reblogged this on Kallmann's syndrome life and commented:
    Very brilliant and very through on the topic. It’s clear that “gender Identity laws attack the rights of Bio born women

  3. Marie-France Lesage · ·

    Brilliant! Thank you! As a natural-born female resident of Washington State, I have been both alarmed and appalled by the Francis case. I beg of you, PLEASE forward your brilliant analysis to key parties, including leaders at Evergreen State College, members of the Human Rights commission in Washington, our new governor, members of the state legislature, etc.

    These ridiculous, dangerous laws conflating sex with self-defined “gender identity” simply cannot stand!

    Women deserve so much better than this. Being thrown under the bus for creatures like Francis is nauseating and infuriating. Decades of effort by millions of women to improve our lot in the U.S.A. and this is what we get? A male flasher in the locker room with young girls and NO ONE can stop him? HELL NO.

  4. Good to see some coherent legal thinking here. Thank you very much.

    I notice voyeurs are not discussed. In addition to exhibitionists, we have this problem of peeping toms who don’t even have to “peep” any more. There may be more of these than any of the other categories.

    Regarding the clumsy conflation of sex and gender, I’m reminded that “identification” must be carefully distinguished from “identity”. Trans “women” may identify as women, and this may be categorized as a mental illness, lead to social stigma, and require some societal protection under handicap discrimination laws, but identification is not at all the same as possessing the identity of woman.

    It’s possible that one reason transactivists are leaning so heavily on sex discrimination and sexual orientation protective laws, which conceptually aren’t analogous to their situation, is because the ADA specifically exempts them from protection, due to Sen. Jesse Helms and others way back when. It seems to me that what is needed here is to remove that exclusion.

  5. Thanks for reading, karmabad! Yes, voyeurism is another angle to take on this, as I mentioned at Gender Trender when I first began formulating this analysis! Thank you for the reminder. 🙂

    So you think that transsexualism should be a disability under the ADA? Interesting. I highly suggest the article by Jennifer Levi linked to in endnote 9 for more on this. Disability is a very controversial legal strategy in the trans community. Dean Spade comes to mind as the primary opponent of framing gender non-conformity as a disability. I agree with him as a general matter, but where gender is confused with SEX, we get into BODIES. Physical modifications require MEDICAL interventions and there HAS to be a medical justification for the surgery and the hormones (especially if INSURANCE is going to cover it; it has to be medically necessary!). If we can separate gender from sex, however, this will ALL GO AWAY. And that’s my ultimate goal: to keep sex and gender legally separate.

  6. Trans activists have an attitude of “me, me, me, regardless of the costs to other people”. They are able to identify with Colleen, and so they feel Colleen’s rights should trump the safety and well-being of the 150 million or so females in this country.

    Perhaps what’s needed is some legal pushback. If being associated with sexual fetishists, peeping toms, exhibitionists, etc. started to lose *them* privileges and legal recognition, perhaps their own self-interest would lead them to support the protections you describe, as a way of setting themselves apart. Right now, the more people they get under their “umbrella”, the more power they feel they have.

  7. Yes, Kathrin, that is precisely the trans strategy right now, legally and socio-politically. It’s a BAD one! Truly, I am doing their work for them. THEY should be the ones trying to PEEL OFF the fetishists and predators from the class of transSEXuals that they are trying to protect and claim legitimacy for. But nooooo, I have to make all the arguments! Because it MATTERS to women and girls.

  8. Which is why the current ADA laws protect Intersex people and not Trans people.

  9. I love this article. It is articulate, clear and logical. And I totally agree with your point, which shouldn’t be controversial as it is not transphobic or discriminatory in any way.

    Do you know if anyone has written a rebuttal to this? I am curious to see how those who disagree might defend their position.

  10. Thanks for letting me comment on what is a side theory to your interesting theory of improper usage, but yes, it is true, I’m starting from scratch theoretically and wondering why protection for trans people has not been rooted in disability law, rather than sex discrimination or sexual orientation discrimination law, from the very beginning. I’m starting to wonder how the courts have careened completely off-track.

    I’m looking at Price Waterhouse, linked to in your first paragraph. If I’m reading correctly, the court cites Title VII and its clear and closed references to “sex” throughout, then converts “sex” to “gender” entirely arbitrarily and without warrant, which starts a cascade of misunderstanding. The Court then goes on to compound the problem it has created by holding that the plaintiff woman (who clearly was not given a partnership because of discrimination based on her sex, under Title VII), was discriminated against because of “sex-stereotyping”, in other words, because of her poor “gender performance”, not her sex!

    Put these 2 mistakes together, and we have an unwarranted extension of Title VII to legally synonymize biological women, whom Title VII was enacted to protect, and men who identify as women (and are discriminated against because they do not perform as stereotypically masculine). Nobody ever dreamed at the time Title VII was enacted that it would cover men who have a mental disorder which causes them to identify as women. Or did they? Am I missing some bit of legislative intent?

    I’m so flummoxed by the cases I’m amazed that you’re getting a coherent creative legal argument out of this mess.

    I’ve also looked briefly at the Ave Maria School of Law article (by Jennifer, Levi, your footnote 9), which seems overall to be a Catholic apologia on male-female marriage, but which contains, (at pp. 104-110) as you point out, an argument for using disability laws to protect trans people. Here’s a summary of that discussion:

    “..Four basic criticisms [to using a disability legal model] emerge. First, people have a reflexive aversion to being included within the stigmatized community of disability. Second, some argue that a disability theory is under-inclusive because it may not be available to all persons who identify as transgender, specifically those who reject a medical diagnosis as being at the root of their identity. Third, a class-based critique raises a concern about the medicalization of the transgender condition. Finally, a post-modem approach that seeks to disaggregate sex and gender concludes that, because all gender is culturally defined, an essentialist approach, which only crassly describes a disability model, should be rejected.”

    If these are the reasons trans people don’t want to use the ADA, they don’t have any arguments at all, IMHO ( I won’t go into detail here so as not to derail your points though).

    The POLITICAL reasons why trans people don’t use disability laws seem to be that, first, the ADA doesn’t cover their medical condition (for egregious reasons), and it will require a lot of energy and work to get included, perhaps, and second, they have already been handed the full panoply of the protection of sex discrimination laws on a silver plate, in some moment of supreme legal confusion.

    I’m having a hard time accepting that we should be working with “gender identity” (sic, they should be called “gender identification”) laws at all. If I understand you correctly, your argument is making the best of the bad situation we’re in by saying let’s at least try to make these laws realistic and somewhat safe. I see that, and I see how the improper usage clause is useful for that, and you make the case.

    I’ll stop now, and thanks again for bringing up these issues.

  11. I actually like the direction in which these laws are moving. I hope they will get to a place where the wording is changed slightly and the “or” in the list of qualifications for protection becomes an “and,” also that the “assertion” becomes “demonstration.” That way no one can just come up and say “hey I’m a woman let me in,” or say it enough times that they have to be let in, but the people who are genuine about it are able to go about their lives in as much of an ordinary way as the rest of us do.

    This story is a disgusting example of what happens when people are enabled to abuse these laws. If this person really is trans they need to be self-aware enough to know that it what they did was not acceptable. And I don’t mean just the exposure I mean looking like a man in the (especially young!) women’s locker room. Looking like a man, even if you know yourself to be a woman, should be an instant barrier from entering women’s spaces. I know that isn’t fair to everyone, but if you can’t be perceived as a woman (based on your actions by faaaar first) you can’t just assert that you are one. It isn’t right, she should know, if she truly knew what women felt like, that she would make people feel uncomfortable and unsafe by doing so. At that point she should, as any one raised as a woman would remember being told to do, take one for the team she wants to play on and not burden others for her own momentary comfort. It isn’t terribly difficult to avoid changing rooms and bathrooms. It simply isn’t.

    This situation needs to be a two way street. Trans women need to understand the way that their actions effect others, and that if laws protecting them are overly broad, everyone including they will suffer from it. They need to understand that a high standard for providing safety is not only a good idea but the only way things should be. Otherwise it allows those who want to cause harm yet another caveat towards such ends. And under specific conditions, like the entire list of points above then they do need protection, and they won’t be causing harm by being awarded it.

  12. I agree with this, ESPECIALLY when it comes to vulnerable womon only spaces where genitals could be revealed: bathhouses, locker rooms, bathrooms. I STILL would like to know how ANY ‘gender identity’ laws are supposed to help me as a Butch Dyke, avoid harassment out in the world, or discrimination in the workplace. On the other hand, if I claimed FTM, THEN MAYBE the law would work for me! Or had surgeries. NOT!

  13. […] male sexual predators who will forseeably leverage “gender identity” to fulfill their improper purposes. Regarding our concerns about sex-based male violence, here is a loooooooong and updated list of […]

  14. Just browsing an article from Huffpost, and found this little tidbit, regarding the DSM V and the ‘new’ definition of this condition–: “In the old DSM-IV, GID focused on the “identity” issue — namely, the incongruity between someone’s birth gender and the gender with which he or she identifies. While this incongruity is still crucial to gender dysphoria, the drafters of the new DSM-5 wanted to emphasize the importance of distress about the incongruity for a diagnosis. (The DSM-5 uses the term gender rather than sex to allow for those born with both male and female genitalia to have the condition.)
    Really? That’s the reason they used the word “gender” rather than “sex?”

  15. Take it farther, draw a line. There was once a line, drawn by nature, between “male/female”. It is not sex-based discrimination to exclude the opposite sex from any activity that legitimately excludes them by reason of not having the same reproductive organs. Women’s bathroom, locker room, dorm , health clinic.

Please familiarize yourself with the blog's content before commenting. All comments are moderated.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: