Delaware joined 16 other US states this week by passing anti-discrimination protections for “gender identity.” The good news is that some reasonable limitations were added by eleventh hour amendment to the legislation.

The central problem with “gender identity” legislation is still implicated by the definition itself because it directly overrides sex and is self-referential (gender is gender). Let’s take a look, bold text added by me.

“Gender identity” means a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.

Again, “gender identity” means a gender-related something. This is hard to decipher if you don’t know what gender is in the first place– is it an oppressive construct we are trying to escape? or some inherent state of being that we’re trying to get back to? We just don’t know.

Next, wherever we see the word “regardless,” it means that we’re being instructed to disregard something else. In this case, we must disregard sex: “regardless of the persons’s assigned sex at birth.” So where “gender identity” protection is invoked, sex should be disregarded.

THE AMENDMENT

Luckily, in Delaware, a few (untested) qualifications to this legal sleight of hand were added at the last minute. Based on news reports, there was heated discussion about the need to balance different, competing interests. This is excellent. This is what democracy is supposed to do. Delaware’s expanded definition of “gender identity” is now almost identical to those passed in Connecticut and Massachusetts.

First, The person claiming discrimination must express a “consistent and uniform” “gender identity” in order to claim protection. That means that part-timers are not covered. Weekend drag queens are not covered. This appears to implicitly acknowledge that overriding sex, or changing one’s sex, is not a trivial matter.

Second, “gender identity” may not be asserted for an “improper purpose.” This exception would seem to exclude fraudulent interlopers such as Colleen Francis and other sexual predators from demanding entrance to sex-segregated spaces “regardless of the person’s assigned sex at birth” on the basis of their own self-defined “gender identity.” This exclusion has not yet been litigated, so we don’t actually know the extent of its reach. But basic fraud prevention measures should be standard in any law.

Third, Delaware’s “gender identity” laws must be applied to a wide range of contexts:

1. Hate crimes
2. Employment
3. Public works contracting
4. Housing
5. Equal accomodations
6. Insurance business

Fortunately, the amendment added a very significant protection for women who do not wish to share private space with males in certain public settings:

A place of public accommodation may provide reasonable accommodations based on gender identity in areas of facilities where disrobing is likely, such as locker rooms or other changing facilities, which reasonable accommodations may include a separate or private place for the use of persons whose gender-related identity, appearance or expression is different from their assigned sex at birth, provided that such reasonable accommodations are not inconsistent with the gender-related identity of such persons.

This is a very reasonable compromise and one that has been used in other jurisdictions! It provides everyone with the facility access they need and avoids imposition of one group’s needs on another. This is precisely the kind of language I would like to see added in every state seeking to pass “gender identity” protections that override sex. It’s not rocket science, it’s just fair.