The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some say that a ban on sex discrimination "require[s] unisex restrooms in public places." "Emphatically not so," according to a prominent feminist:
Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.
The author? Now-Justice Ruth Bader Ginsburg, writing in The Post on April 7, 1975, and explaining why the Equal Rights Amendment shouldn't be opposed based on "the 'potty issue.'" The Equal Rights Amendment would have specifically barred sex discrimination by the government. Likewise, Title IX (the legal rule involved in the North Carolina school transgender student case) bars sex discrimination in educational institutions. The Civil Rights Act (the legal rule involved in the lawsuit the Justice Department just filed against North Carolina) bars sex discrimination in many other places. And the Equal Protection Clause has, since 1975, been interpreted by the Supreme Court as pretty close to what the Equal Rights Amendment would have provided. Then-Professor Ginsburg's argument would apply as much to Title IX or to the Civil Rights Act as it did to the Equal Rights Amendment.
Of course, one can argue that views about privacy in restrooms have changed since 1975. And one can argue that, even though women generally rightly feel an invasion of privacy when they see biological males in a women's restroom, they shouldn't feel that way once they learn that those biological males actually perceive themselves as female. Indeed, one can argue that women's constitutional rights to privacy stop applying when the biological male has this self-perception. I set aside these debates here.
But for now, I do think it's worth noting that, when sex equality rules were championed in the 1970s, now-Justice Ginsburg—one of the most prominent feminist lawyers of her era—rejected as "emphatically" unsound the argument that those rules might lead to males being allowed to use women's restrooms.