I’ve always been a fan of those Public Service Announcement, warning drivers not to drink and drive or text and drive. The best ones are from the UK, with slow motion photography to make it clear just how devastating those split-second decisions can be (the moral is, don’t text and drive).
Watching the head-on collision between Sex and Gender Identity unfold over the last 20 years, on the other hand, is more akin to time lapse photography showing the construction of a building. It’s not as dramatic as the car crash PSAs, but at the end, you have a building.
We’re now starting to see the faulty construction that is Gender Identity have a real-life impact on the lives of Women and Girls. This issue is coming to a head in Washington State, where Women and Girls are asserting the right to use sex-segregated facilities free of bepenised Trans Women like Colleen Francis.
HAI! I AM NOT REALLY A WOMAN!
Now, it’s a Right Wing Organization that is standing up for Women and Girls; unsurprisingly, they rely on the “perversion” trope that they also use against Gays and Lesbians. Equally unsurprisingly, GLBT and Women’s Organizations continue to look the other way when it comes to confronting and resolving the head-on collision between Sex and Gender Identity.
Specifically, the proliferation of legislation designed to protect “gender identity” and “gender expression” (Gender Identity Laws) undermines legal protections for Women vis-à-vis sex segregated spaces, such as Woman-only clubs, public restrooms, public showers, and other spaces designated as “Woman only.” Women require sex-segregated facilities for a number of reasons, chief among them the documented frequency of Male sexual violence against Women and the uniquely Female consequence of unwanted impregnation resulting from this relatively common form of violence. Public policy, therefore, rationally permits sex segregation in certain settings where a reasonable expectation of privacy exists.
Every state in the United States plus the District of Columbia has adopted a law that bans discrimination based on sex in employment, housing, and public accommodations, among other areas of public life. These “Anti-Discrimination Laws” stand as evidence of a public policy statement against irrational discrimination, which has no place in a free and open society. However, each of these Anti-Discrimination Laws also preserves an exception to the general policy against discrimination with regard to sex-segregated facilities. These exceptions operate as an admission by that state that Women have an interest in sex-segregated facilities. That is, the government recognizes that Women and Girls have an interest in having space away from Males where Women and Girls might expect privacy.
Despite the distaste I have for the messenger in the Colleen Francis case, I have to agree with the message – the right of Women and Girls to be free from the Male gaze in spaces where we have a reasonable expectation of privacy is violated by Gender Identity Laws. The lawyers for the Women and Girls have relied on varying theories supporting their claim that Colleen Francis has no business in a Women’s locker room, including the assertion that the showing of his womanly penis in the Girl’s locker room violated criminal laws against indecent exposure and that the college violated its duty to keep its premises “reasonably safe” (a theory sounding in tort law) by allowing him into the space. The lawyers also mention the 14th Amendment, stating that the college potentially violates the rights of Women and Girls by knowingly placing them in danger.
What the lawyers do not assert, however, is that the enactment of these laws in and of themselves constitute a 14th Amendment violation. That is, Sex is a characteristic afforded protection under the 14th Amendment, and in order to pass a constitutionally valid law that impacts this characteristic, the State must prove (1) the existence of specific important governmental objectives and (2) the law substantially relates to the achievement of those objectives. This level of scrutiny is called the Intermediate Level of Scrutiny.
If courts applied the Intermediate Level of Scrutiny to a challenge by Transgender Advocates against sex-segregated facilities, Government would probably assert that it has an interest in protecting Women and Girls from documented Male Violence, and that the law allowing sex-segregated facilities substantially relates to the achievement of that objective. It’s telling that Transgender Advocates don’t assert this claim – because, I suspect, they would lose.
The U.S. Supreme Court first came up with the Intermediate Level of Scrutiny in the case of Craig v. Boren, in which the court examined an Oklahoma law that established a drinking age of 21 years old for Men and 18 years old for Women. The court concluded that “Oklahoma’s 3.2% beer statute invidiously discriminates against Men 18 to 20 years of age.” Hooray for beer!
So, what if Women and Girls asserted that Gender Identity Laws themselves violate their rights under the 14th Amendment? The Women and Girls would assert that these laws jeopardize their right to sex-segregated accommodations, thus depriving them of protection under the law. Those seeking to uphold Gender Identity Laws would have to show that the enactment of Gender Identity Laws helps achieve specific governmental objectives and that the law substantially relates to the achievement of those objectives.
What does this mean?
Transgender Advocates might say that government enacts Gender Identity Laws for the purpose of combatting discrimination against Transgender people and that Gender Identity laws substantially relate to the achievement of the elimination of discrimination.
Is this provable? Currently, Transgender Advocates seek redress under several theories – they push for Gender Identity laws while at the same time asserting claims for Sex discrimination. Which is it, Transgender advocates? Is it Sex or Gender Identity? And if it is provable, what of the counter argument – that Gender Identity Laws harm Women and our rights. It seems Sex is more meaningful a characteristic in courts than Gender Identity would be – my odds are on Sex winning.
That is because of the level of scrutiny would courts apply to Transgender people. When Gays and Lesbians assert that a law violates our constitutional rights, courts apply rational basis scrutiny to the claim. That is, the governmental action must “rationally relate” to a “legitimate” government interest. Trans would likely fall into the rational basis bucket – because, again, if Transgender Advocates could successfully assert that there’s no rational basis for sex segregated facilities, one wonders why they haven’t done so.
Whatever the outcome, it is interesting that it’s Right Wing Organizations that are the ones standing up for Women and Girls; and it is horrendous that the Faux Liberal Women’s and GLBT Organizations have completely abandoned Women and Girls in this inquiry.
It will be as fascinating as a don’t text and drive PSA to see how this unfolds.
HAI! I WILL COMMENT ON YOUR BLOG ABOUT HOW YOU WOMEN DON’T CARE ABOUT WOMEN LIKE ME (I.E., MEN)
You think I just don't understand, but I don't believe you. 
Reblogged this on GenderTrender.
Well done Cathy. Thank you.
Lawyers who care about women need to start thinking about ways to fight Gender Identity laws in court. Happy to do what I can in this regard.
Reblogged this on violentwinter.
Why are bathrooms the only place we’re afraid to be raped in? We should demand to not see men or any of their maleness in ALL spaces, and in ALL respects, not just genitalia. No more co-ed offices, buses, or schools! WE HAVE A RIGHT TO BE SAFE FROM MEN. After all, men will rape anyone. If you have a penis, you are a rapist.
Why are you trolling this blog, sir?
I am legitimately not a sir.
The fact that you think a woman can’t challenge your views is sexist.
So you are a troll. Why are you trolling this blog? You have nothing to add of substance.
Also it occurs to me that you might be mistaking me for a trans-woman, which is also hilarious.
You’re dumb.
Oaken Troll Alert
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Oh goody, Whois.
I’m chilled to the bone.
Good job taking yourselves super seriously and being intimidating.
I’m not ‘trolling’ your blog, I’m trying to add in my feelings on demanding separate spaces for women and men, by applying the logic at a higher level and hopefully making it clear why someone would view the whole idea as stupid.
Clearly the message was lost.
No one is trying to intimidate you. I am giving your information to others who have blogs so they can watch out for a troll. Cisterhood is powerful. Have a nice day!
Oaken/Syd:
A lot of women took the time to respond to the questions you raised here on my site:
http://gendertrender.wordpress.com/2012/10/21/i-want-to-know-how-to-accept-myself-as-a-woman/
You did not respond to any of them. Were you just trolling?
Thanks Gallus.
Oaken, why are you trolling? What are you looking for?
Here’s the thing. I am not interested in having conversations with internet people who sound like trolls. Come back using a different name and try to sound not like a troll.
No, Gallus. it was a genuine quest for alternative views. To be quite honest I haven’t responded because even though the viewpoints are appreciated, I don’t have a valuable response to each comment. I’m still quite torn on how I feel about myself, and I feel like responding 15 or so times with ‘Thanks, good to hear’ is disingenuous, and I haven’t sat down and absorbed the gravity of each respondent to reply meaningfully yet.
On another note, I am still not trolling and still feel that although everyone has a right to be offended, nobody has the right to exclude others from somewhere on the sole basis of personal distaste. To the argument that it’s not a matter of personal taste, and a legitimate fear for safety, my response; I don’t feel anyone would be significantly more dangerous in a bathroom than in other public co-ed spaces on the basis of sex.
Then again, I don’t find nudity of males or females offensive or assaulting, so overall I accept the minority position and agree that most likely, everyone will disagree.
If I had attempted to troll anyone with earlier statements; I probably would’ve said something overtly hateful and not something intending to be at least somewhat thought provoking. Sarcasm is apparently not permitted in attempts at poignant comments, or at least sarcasm is not permitted in disagreement with the thesis.
I digress, though the person mentioned in the post was certainly rude in splaying out naked while young people were present, it doesn’t seem like he or she was intentionally assaulting them.
tl:dr, sorry for not catching up with the comments on Gallus’s post, and I really didn’t mean to be trolly in my first comment, maybe sarcastic and a bit parodic, but perhaps my definition of trolling is different than yours.
Excuse us if we don’t believe the troll.
These laws aren’t about PERSONAL taste, they are about Public Policy. Public Policy heretofore has expressly sanctioned sex-segregated public accommodations; Gender Identity laws undercut that – I suspect that has more to do with liberal guilt and ignorance about the actual lack of surgery most Trans people get and not some grand cultural shift AWAY from sex-segregated space.
Oaken, I am a smart woman. Most of my commenters are smart, educated women. When you obviously troll with your bullshit point (which is on a point we don’t even make), you bring down the discussion. I am really tired of you and others bringing down the discussion on my blog.
So yes, your post was a troll. So, either engage with some good faith, or go away.
I feel that sanctioning sex-segregated public spaces is not right.
Have all the private meetings of females-only you’d like, it’s within your rights.
I’m done trying to reword my opinions to pander to anyone.
There is no place for those who neither appease men nor hate them.
All 50 states plus DC already have laws sanctioning sex-segregated public accommodations. If you don’t support that, you have a lot of work to do.
It’s not hateful to men to have sex-segregated space. You sound like a Trans Activist. Go be a Trans activist.
The mighty Oaken has spoken!
“I am legitimately not a sir.” That line strikes me as very odd. It sounds like something that a male who legally changed his personal documentation to ‘female’ would say. However, even if you are actually a woman, your “application of logic at a higher level” still completely fails.
There are places that need to remain sex segregated for the safety of females. You see, bloke-y Oaken, if you were to look at any of the sex offender registries, you’d immediately realize that approximately 95% of the offenders are males. Using history and crime stats, it’s easy to see why it’s best for females NOT to be undressed in enclosed spaces with random males. Without sex segregated spaces, sexual assaults would increase simply because the opportunity for assault increases.
Should people ignore data and evidence so that some confused, delusional, self hating, gender bending fools can piss in a different toilet or prance around in the wrong locker room, like Mr. Francis? HELL NO!
Yes, Oaken sounds like a troll to me.
Gender Identity laws MATTER because when they pass, with overbroad definitions, they give legal license to allow men in women’s spaces – and they disable women from questioning it, especially as they become more and more indoctrinated into the idea that “Women must accept Men in women-only space.”
Radfems crack me up. Adorable how you seem to think you’re helping some “cause”.
Maybe try something worthwhile, like the pay difference between men and women?
Wow, you sound just like Men’s Right Activist.
You do realize many women can hold more than one thought in our pretty little heads at once, right?
Also, really tired of men trolling my blog, Marci: http://www.lauras-playground.com/forums/index.php?showtopic=17506
Ms. Brennan or Cathy if you prefer:
I am a post-operative transsexual. Are we allowed to comment here?
Ya.
If a 45 year old male walked in off the street and entered a women’s locker room to deliberately expose his genitals to a 17 year old girl, he would be arrested on the spot. WHAT DON’T THEY UNDERSTAND? A 45 YEAR OLD MAN DELIBERATELY EXPOSED HIS GENITALS TO A 17 YEAR OLD MINOR. Indeed, he paraded around the facility as if he owned it. The pool was used by a local high school swim team and, as I understand it, a grade school also used the facilities on occassion. So, girls from the ages of six to eighteen had access to this facility. When a female swim coach told Francis that he had to leave, she found him with his legs open and his genitals exposed.
Colleen Francis is a biological male who spent twenty years in the military. He is not intersex. He has not undergone sex reassignment surgery and definitely has male genitalia. I read that he started female hormones only two years ago.
This is the police report.
Click to access EvergreenPoliceReport.pdf
THE PARENTS ARE ANGRY AS HECK, AND THEY AREN’T GOING TO STAND FOR THIS OUTRAGE. This is a link to the Daily Mail UK. Read all the comments. People can see through this bull and aren’t the least bit happy. This is down right creepy, and if any nut job thinks that people are going to put up with this, they are insane.
http://www.dailymail.co.uk/news/article-2227562/Colleen-Francis-Outrage-transgendered-woman-permitted-use-college-womens-locker-room-exposing-himself.html
Dear bugbrennan,
Your blog post implies that you believe that ‘a trans woman’ is not a ‘woman’ per se. Are you being devil’s advocate or is that genuinely your belief?
If you think ‘trans woman’ are not ‘women’ then I disagree with you vehemently.
Trans women are men. Feel free to read other resources on this website.
Victoria, what precisely is your definition of the word woman?
The Can of Worms Is Opening…
Colleen Brennan Francis is the MTF in Washington State would decided his needs to access women-only space should trump all other women. So far, Evergreen College is catering to his entitled behavior.
But does it have to? Should it? Is it even legally required to cater in this way?
Washington State bans discrimination based on ”sexual orientation,” defined as heterosexuality, homosexuality, bisexuality, and gender expression or identity. “Gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
It’s unlawful for any person or the person’s agent or employee to commit an act that 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 (including a women-only day spa), except for conditions and limitations established by law and applicable to all persons, regardless of sexual orientation. However, the law provides that behavior or actions constituting a risk to property or other persons can be grounds for refusal and does not constitute an unfair practice.
So, let’s take the example of a woman-only day spa (remember Osento?). Let’s pretend Osento is in Washington. Can the owner of the day spa deny intact trans women access? The answer has to be yes, because otherwise she could not deny any men access (remember that stupid definition of “gender identity and expression”? That can apply to ANYONE. Having male-bodied people nude in the presence of nude female-bodied people causes a risk to women – risk that we will suffer psychological harm (that is, we might be triggered in the space) and a risk of sexual assault. What about the harm women suffer when they are denied access to women-only space, free from the male gaze?
It will be interesting to see if Washington State decides to care about this.
Perhaps the broader question is going to be whether 1) institutions and 2) other Legislatures decide to wake up and give a damn about the lunacy they have created through this insipid ‘gender identity’ nonsense that also allows for intact males to be declared ‘legally female’ through the stroke of a judge’s pen.
[…] how we have talked about the head-on collision between gender identity and sex? What Wimmer fails to acknowledge is that Levi’s presence in the Man-only space violates the […]
[…] Funnily enough, I have heard from multiple sources that Transgender Advocates now have to offer an amendment to accommodate concerns around sex-segregated facilities – because, it turns out, Women aren’t bigots for not wanting to undress in front of bepenised people at the gym. […]