Privacy

Patient Privacy and Transgender Medical Professionals

An interesting incident from England, as reported by the Sunday Times.

|The Volokh Conspiracy |

The Sunday Times (Nicholas Hellen) reports:

A woman who requested a female [National Health Service] nurse to perform her cervical smear test was "embarrassed and distressed" after a person with stubble and a deep voice summoned her for the intimate procedure.

The nurse's view, apparently, was, "My gender is not male. I'm a transsexual." But the patient objected, writing:

[It was] weird where somebody says to you: "My gender is not male" and you think: "Well, what does that even mean? You are clearly a man." …

[The nurse] had an obviously male appearance … close-cropped hair, a male facial appearance and voice, large number of tattoos and facial stubble ….

People who are not comfortable about this are presented as bigots and this is … kind of how I was made to feel about it.

The NHS apologized to the patient, according to the Central and North West London NHS Foundation Trust:

We apologised to this patient for the recording error and because the staff member accepted they didn't manage the situation appropriately; the patient needed to feel listened to. Trust policy is to consider seriously all requests for clinicians of a particular gender.

Here's my thinking on this: Medical care facilities are generally legally allowed to accommodate patients' preference for male or female doctors or nurses for various intimate medical procedures, and it's good that they do so for those patients who have such a preference (and I realize that not all patients do). In the U.S., for instance, even when sex-based job assignments are generally forbidden, they are allowed when sex is a "bona fide occupational qualification," and such privacy considerations are indeed viewed as BFOQs. To quote Veleanu v. Beth Israel Medical Center (S.D.N.Y. 2000)—a nonprecedential decision, but one that summarizes well the view of courts,

[T]he Court assumes that defendants harbored a plan for women-only health facilities and that they endeavored to accommodate patients' requests to see female doctors. That a medical entity may seek to respond to some medical treatment requests of its female patients—an expression of preference particular to the health care field—does not, of itself, indicate that it discriminates against male doctors. Veleanu has not introduced any evidence to substantiate any connection. An OB/GYN physician, like Veleanu, provides intimate and sensitive personal care to a women's body.

Because such care implicates the patients' privacy rights, personal dignity and self-respect, the Court believes that health care presents unique circumstances that may justify reasonable efforts to accommodate a patient's expression of preference of doctor by gender, and that female patients may have a legitimate privacy interest in seeking to have female doctors perform their gynecologicalexaminations. Indeed, other district courts have consistently recognized that privacy interests may justify adjustment of sex-based requirements for certain jobs. See Jones v.. Hinds Gen. Hosp., 666 F.Supp. 933 (S.D.Miss.1987) (hospital could terminate female nurse assistant in favor of male orderlies on the basis of gender in order to preserve privacy interests of male patients); Norwood v. Dale Maintenance Sys., Inc., 590 F.Supp. 1410, 1416-17 (N.D.Ill.1984) (allowing opposite sex attendant into washrooms while in use is intrusion on personal privacy warranting sex-based hiring policy); Backus v. Baptist Med. Ctr., 510 F.Supp. 1191, 1194 (E.D.Ark.1981), vacated as moot, 671 F.2d 1100 (8th Cir.1981) (hiring of male nurse would invade the privacy of obstetrical patients in hospital where nurse was obliged to perform sensitive and intimate tasks); Fesel v. Masonic Home of Delaware, Inc., 447 F.Supp.1346, 1353 (D.Del.1978), aff'd, 591 F.2d 1334 (3d Cir.1979) (gender-based hiring permitted for nurses in retirement home). While this Court need not address the permissible bounds to which this principle may carry, the Court finds that Veleanu has failed to raise an inference of discrimination based on either of his first two points.

By the same logic, a woman patient (for example) should be able to ask for a nurse who is physically a woman, rather than just for a nurse who self-identifies as a woman. Even if discrimination against transgender employees is legally treated the same as sex discrimination, some such discrimination is rightly allowed to protect privacy.

Of course, I recognize that some might think that privacy interests aren't a legitimate basis for discrimination (perhaps because they think that privacy concerns are just a social convention that should be rejected), and that the woman patient should just accept having the cervical test done by an employee who self-identifies as female but is apparently physically male. But if you think that, then it seems to me that you have to reject the privacy-based BFOQ altogether, and take the view that women patients must also accept having the tests being done by an unambiguously male employee.

Advertisement

NEXT: "Is Selfishness a Virtue?": A Reason/Soho Forum Debate, January 16

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I wonder if a 2000 case is still good guidance in this area. An awful lot has changed since then.

    1. What changes in the law do you think we need?

      1. Reduction of special and unearned privilege; abolition of qualified immunity; treatment of most inheritance (above average annual wage earnings, perhaps) as regular income; termination of the drug war; less subsidization of pollutants, the teaching of nonsense, and entertainments favored by the wealthy; a reduced drinking age; and increased penalties for dawdling in the passing lane, for starters.

        1. Whenever you need someone to post off topic drivel, Artie comes to the rescue. Way to never disappoint Artie.

        2. Wow. This is truly a new year. Let’s take it by the numbers.

          1. Not sure what this means so no opinion
          2. I agree and lets get rid of prosecutor and judicial immunity as well
          3. I disagree
          4.YES! This would do wonders for our society in so many ways
          5. See number one above
          6. I’m open to this
          7. See number four above

          I don’t think I’ve ever agreed with so much of any of your posts.

  2. I genuinely hope the courts rule that people have to accept transes as authentic stand-ins in these sensitive areas. We need to press the issue to cause the backlash necessary to stop this madness.

    1. Be careful what you ask for, Sam. Court rulings are hard to undo.

      1. Court rulings vary in their hardness-to-undo. It depends on whether they lie on the march of progress or athwart it.

        1. Does that depend on the definition of progress?

          1. I can see you’re gonna need re-educating.

            1. “the march of progress or athwart it.”

              Another country heard from. Elsewhere — so I’ve heard — the march of progress means movement toward the caliphate.

              From sociology (before it became what it has become — and I’ll leave it at that), Max Weber strongly argued that there was /no/ permanent direction to history. I always respected old Max.

      2. Yeah well legally forcing women to accept a man doing stuff to their lady parts is one of those things that might bring out the ultimate nullification of the courts, namely torches and pitchforks….

  3. Maybe medical personnel should realize that it’s not about them?

  4. By the same logic, a woman patient (for example) should be able to ask for a nurse who is physically a woman, rather than just for a nurse who self-identifies as a woman.

    You know, Eugene, sometimes I feel sorry for your students. Any trans student you ever have would read a statement like this and conclude you just don’t take their existence seriously.

    To the point: what do you mean by “physically a woman”?

    1. An actual woman not a man who identifies as one.

    2. I mean pretty much what most people would think I mean: Someone who appears to have male physical traits, whatever sex the person identifies with. (I realize that there are borderline cases; but, as I understand the story, the nurse was indeed perceived to be physically male, and there was no claim to the contrary.)

      I also think, as you might gather from my post, that people who care about their privacy, in the sense of not wanting to have their intimate parts touched by nurses of the opposite sex, rightly care about sex as physically manifested rather than the sex of the nurse’s self-perception. It’s not that I don’t take the “existence” of transgender people “seriously”; it’s that I take seriously people’s choices about their own intimate privacy.

      1. Here, by the way, is one way of testing this. Say that a woman friend of yours tells you, “I don’t want a male nurse inserting his fingers inside me to perform a cervical smear test. I know my doctor’s office has three nurses — Alice, who is physically female and thinks of herself as a woman; Bob, who is physically male and thinks of himself as male; and Chris, who is physically male, but perceives himself/herself [as you prefer] as female. I therefore want to be treated by Alice, but not by Bob or Chris.”

        1. “That’s just bigotry — you should be indifferent between Alice, Bob, and Chris, and indeed it should be against the law for your health care system to accommodate that bigotry.”

        2. “I respect your privacy preference, which I don’t think is bigoted; I understand why you wouldn’t want Bob or Chris to perform this test on you, so if you express that preference, your health care provider should be legally free to assign Alice to you, and it would be good patient care for it to do so.”

        3. “I respect your privacy preference, but only insofar as you object to Bob. You should be indifferent between Alice and Chris performing this test on you, because Alice and Chris both think of themselves as women, even though you know that Chris is physically male. Indeed, your health care provider should be forbidden from respecting your preference for Alice over Chris, though it should be free to respect your preference not to be treated by Bob.”

        Which of these views would you take?

        1. Eugene,
          You forgot about case 4: Dee, who is physically female (or, at least, appears to everyone who sees Dee and hears Dee speak) but thinks of herself as male. (Or is planning on transitioning into a male.)

          1. Right, which is important because it would likely prove that the woman had nothing against transsexuals treating her, just people who were biologically male.

        2. Yeah, I’m not sure I understand. What if a person does not want to be treated by an Asian? Well that is actual bigotry. But so what? Wherever possible they should accommodate idiots of whatever species. It is their body, their choice, and their money no matter how stupid their decision.

          And I just have problems with the choice to send a male body to someone who requested a female I just can’t imagine someone thinking it through and making this decision. I’m just not sure I believe it.

          1. And I just have problems with the choice to send a male body to someone who requested a female I just can’t imagine someone thinking it through and making this decision. I’m just not sure I believe it.

            It’s easy enough. She asked for someone female, they sent someone female. The fact that they sent someone with a male body is irrelevant. Because they’re grading femaleness by reference to self certified gender, not biological sex. And they make it very clear in their press statement that they’re willing to entertain requests for a clinician of a particular gender. They make no offer to entertain requests for a clinician of a particular sex.

            Moving on, imagine the scene in the “nurse despatch room” or whatever they have. They get an incoming request for a female nurse – when Josephine the six foot stubbly transgender nurse stands up, who is going to cough and say “Hey, Josephine, she might want a, er, er, person without a, er with…someone not so tall and hairy.” That’s a very short route to dismissal for offences against gender equality.

            1. The person they sent was not responsive to her irrational request and anyone should see that. It may have been rational and responsive in a logical or legal sense. But the patient is not a computer or a lawyer. You are dealing with a deeply irrational human. Deal with that and not your own interests.

              I don’t see any problem at all with the suggestion that “Josephine” step asside as long as she isn’t being denied employment. In fact it was the opposite that got them in trouble.

              And we are all deeply irrational humans so be careful how you treat the irrationalities of others.

        3. As I understand Eugene’s hypothetical, the patient objects to being treated by a transgender woman (genotypic man who identifies as a woman) who hasn’t yet outwardly transitioned in her physical appearance, but does not object to being treated by a transgender woman who has outwardly transitioned. So, she isn’t discriminating against transgender people. She is discriminating based on outward physical appearance. I think that is reasonable.

          On the other hand, if she objects to being treated by any transgender woman including those who have outwardly transitioned, I have a problem.

          1. Who is the judge of the effectiveness of this “outward transition” ?

            From the evidence of the folk turning up on the TV, the medical profession would seem to be still in the learning phase.

            EV did refer to people “who appear to have male physical traits” (presumably with their nurses uniforms on) but I’m not sure that all patients’ concerns would be about physical appearance alone. Some women (biological women) might not wish to be intimately examined by a biological man, even if the man had attempted the outward transition to the appearance of a woman.

            You might make the analogy with a woman having sex with someone she thinks is her husband, but in fact is somebody else. Even if she believes it’s her husband, if she later discovers that it wasn’t actually him, it’s the reality not the appearance that probably concerns her.

            1. It makes no difference how effective the transition is. What matters is how effectively they have responded to the emotional needs. Those emotional needs are apt to be highly irrational. Accept that and stop treating it like a problem in computer programming.

              For christs sake people.

          2. I “have a problem” with anyone who has any preference at all to the extent that I care at all. None of it is even a little rational. But it is human. Deal with the human be they religious nut, political freak or mental patient. Do whatever is possible to make them comfortable.

            They not there to police anyone’s sensibilities. Their duty is to lean over backwards to not care.

            1. You keep using “irrational.” But it doesn’t mean what you apparently think it means.

          3. For the question posed by Doctor EV, I agree with Josh R, and pick door #2. While psychological gender has proved to be an immutable characteristic, appearance is not. The trans practitioner may chose to be offended by the patient’s discrimination, but does not have a right to be protected from that offence.

            1. I realize there are elements of physical appearance which are indeed immutable, such as height. However, it appears only the changeable appearance is at play here.

          4. I disagree, however, with Josh’s second assertion.

            As in the Masterpiece Cake Case, I believe there ought be a general right of citizens to discriminate, with an exception when the discrimination is part of a larger discriminatory regime (e.g. segregation, ostracization). The transgender class certainly meet this exception. However, I believe this discriminatory regime against transgenders can be sidestepped by updating the standard preferences questionaire.

            Current example (link to full survey):
            “7. Do you have any cultural, religious beliefs, or preferences about your health care that you
            would like us to know?”

            Updated:
            “7. Do you have any cultural, religious beliefs, sexual orientation, gender identity, or preferences about your health care that you would like us to know?”

            If the updated questionnaire resulted in a large percentage indicating they do not prefer a transgender practitioner, I suppose this could harm the practitioner’s career. Then there would be a problem. However, I would think this not be the case, and the questionnaire would serve the best interests of both the patients and practitioners.

            1. correction: with an exception when the discrimination is part of a larger discriminatory regime to the detriment of the class.

      2. I mean pretty much what most people would think I mean: Someone who appears to have male physical traits, whatever sex the person identifies with.

        This isn’t what you said, and I think you know this. You described someone who “is physically a woman,” as opposed to one who has merely “self-identified” as a woman, which I think any trans person would understand to be an insinuation that you don’t think a transgendered woman is actually a woman. In your clarification/walkback, you describe something different: presenting as a man or woman. Which would be a more standard way of describing the distinction you’re trying to draw. But that you are either inattentive to or ignorant of what you’re saying with these two sets of terms is, again, problematic.

        Your subsequent hypothetical doesn’t help matters, because you both lapse back into the “physically is” terminology and include no possibility describing a more typical transgendered person’s experience – which is that, once they “come out,” they often adopt the outward appearances of the gender they self-identify with.

        1. I think any trans person would understand to be an insinuation that you don’t think a transgendered woman is actually a woman.

          And?

          1. And, like I said – I feel sorry for his students.

            1. Because… he’s not insane?

          2. In other words, the trans person would understand the person to be rational and in concord with science which the trans person would then take as an insult and call for the cops.

            1. No, I imagine the mental process would go more like:

              I can’t believe that I’m paying $50k/year to attend a law school that hires professors who passive-aggressively nurse their issues with women’s and LGBT equality through thinly-veiled “intellectual exercises.”

              1. See, law schools are supposed to hire professors with all sorts of views, whether or not they agree with your views of women’s and LGBT equality. Some law schools actually do hire such professors, or decline to fire them once they reveal their heterodoxy on the subjects. Law schools also hire people with all sorts of critical views of various religions, political orientations, and the like. Some call it “intellectual diversity.” And my guess is that smart people of all sexual orientations, religions, political affiliations, and gender identities are aware that they might be going to a law school that harbors people with all sorts of views.

                1. The question isn’t about “intellectual diversity.” It’s about professionalism.

                  I learned from many professors whose ideological views differed from mine. In some cases, that resulted in an entertaining (if not always pedagogically sound) push-pull with the subject matter they taught. But I can’t say I can recall any professors who were so indifferent to the diverse experiences of their students that they would openly muse in class on subjects using reasoning that implicitly devalued those students’ experiences.

                  1. I don’t “muse” much in class — I might “muse” on the blog, but class is not really for my musings.

                    But if I were teaching about this subject, I would expect my students to be able to articulate the strongest arguments for both positions. Thus, for instance, if I were teaching employment law and discussing the BFOQ defense, I would expect them to be able to argue that the patient’s preferences should be accommodated, as well as that they shouldn’t be accommodated. Likewise, when I taught Torts, my disclosure-of-private-facts unit included Diaz v. Oakland Tribune (Cal. Ct. App. 1983), a case in which one question was whether a former college student body president’s being transsexual was “newsworthy”; I would expect students to know how to argue both sides of the issue.

                    If some of the arguments on either side of the debate “implicitly devalued those students’ experiences” — or, in other cases, implicitly devalued students’ religious experiences or deeply held conscientious views — that is no reason for would-be lawyers not to study that reasoning, as well as the responses to that reasoning.

                  2. It’s the job of a professor to challenge with reason the “diverse experiences of their students” even if it has the effect of devaluing those experiences. Snowflakes like you are an illustration as to why Socrates got into so much trouble.

                    1. Perseus`: I appreciate your position, but my sense of a law professor’s job is chiefly teaching students how to construct legal arguments (as well as to make predictions about what the legal system will do). This may or may not challenge students’ experiences, or lead them to hear arguments that devalue those experiences — but the goal is for students to learn to be effective advocates for their clients.

                    2. Law school may be narrower in scope than the liberal arts, but I consider the demand that a professor deliberately avoid “devaluing” a student’s experiences (or a particular subset thereof) in the name of “professionalism” to be an insidious assault on intellectual inquiry (I also worry about too much ideology being imposed on standards of “professional conduct” in law and medicine.)

                  3. implicitly devalued those students’ experiences.

                    It always comes down to feelz with modern snowflakes, doesn’t it? Why should a student’s personal experiences be valued in a classroom? One’s family, one’s friends, one’s therapist’s office — that’s where one goes to have one’s personal experiences validated. One goes to class to learn.

                    1. I don’t think it’s fair to equate real transgender people with the sort of campus snowflakes who are triggered by mere moondust. By “real” transgender people I mean people who have a genuine disconnect between what is in their heads, and the evidence of their body. It must be confusing and scary. You do not need to look to a scornful and unfeeling society to account for the appalling suicide rates amongst transgender folk (unchanged, sadly, before and after “outward transition.”) The personal disconnect between brain and body is quite sufficient to explain it.

                      So, we should have sympathy and understanding for those people who find themselves in this difficult psychological state, and reserve our contempt for the political parasites who try to use the plight of unfortunates to push their political agenda. Which is that certain things may not be said.

                    2. “By “real” transgender people I mean people who have a genuine disconnect between what is in their heads, and the evidence of their body.”

                      I think this misunderstands gender dysphoria. Your internal model of your body is generated from sensory data, not your genes and hormones. The latter have enormous behavioral implications, of course, which are routinely derided in other contexts, but you don’t get a (fixed) female body model in your head if you have a male body. (Or visa versa, of course!)

                      That gender dysphoria isn’t simply a mismatch between internal and external, is demonstrated by the failure of gender “reassignment” surgery. Even if the ‘reassigned” person moves away to someplace where nobody knows they’re anything but what they appear. You can’t fix their problems by modifying their appearance, the problem isn’t their appearance.

                      If you’ve got a busted mechanism for forming your internal model from sensory data, trying to change the external body to match is going to be a failure. These people aren’t “women in men’s bodies”, or anything like that. They’re something else entirely. They’re people with a broken internal gender model.

                      They do deserve our sympathy, but that’s different from humoring them.

                    3. They do deserve our sympathy, but that’s different from humoring them.

                      That is how I regard stale-thinking Americans.

                  4. Simon, stop being dramatic. Have a drink or something.

        2. “But that you are either inattentive to or ignorant of what you’re saying with these two sets of terms is, again, problematic.”

          “is . . . problematic” is such a frail accusation. It’s obviously a problem for you. But you aren’t persuading me that it’s a problem for anybody else, including transgender people.

          Think about what you’re saying about transgender law students as well. Many of them have gone their entire lives feeling alienated from others, probably suffering aggressive hostility. And you think this person hardened by that experience is so pathetic that they would get hung up on the pointless distinction between “presenting as a man or woman” and “is physically a woman”? (Almost everybody in the real world understands that the two things mean the same.) Do you think transgender people are that weak?

    3. Setting aside what on earth “take their existence seriously” even means — I mean, I assume you don’t think he crashes into them while walking because he pretends they aren’t there — why would it be relevant to a law class?

      1. D’oh! That’s why I keep falling down!

        1. Reason needs a like button.

          +10

      2. It would be relevant where, as here, Eugene might endeavor to speak on matters of concern to them.

        The same kinds of issues come up when criminal law professors talk about rape, constitutional law professor talk about gender-based discrimination, and so on.

        1. It would be relevant where, as here, Eugene might endeavor to speak on matters of concern to them.

          Does Prof. Volokh have to accept the beliefs of Mormons, or Scientologists, to speak on legal issues related to their religious practices?

          1. No, but I think any of his Mormon or Scientologist students would find it distracting and insulting if he treated their beliefs, in the contexts of those discussions, as essentially silly and not really entitled to respect.

            Why is it so hard for you to understand that professors have responsibilities to their students?

            1. SimonP: 1. I don’t think that a transgender person’s belief that he or she should be treated by others based on the person’s felt gender are “essentially silly.” Neither do I think that others’ contrary beliefs are “essentially silly.” I think the how-others-should-treat question is still open, and needs to be discussed further. It’s also possible — though not certain — that the answer to the question may vary by context, with different answers depending on how serious the privacy concerns are (or other concerns, for instance having to do with same-sex sports).

              2. I would like to hear your responsible to my hypothetical, assuming (in this case) that a patient can plausibly infer the physical status of the nurse’s body (something I realize is often very hard to do, but here it apparently wasn’t). I wanted to figure out if you reject patients’ privacy preferences for men vs. women generally (perhaps on the grounds that they’re nonrational and discriminatory based on sex), and think medical offices shouldn’t be allowed to implement those preferences — or whether the woman patient should be entitled to request a woman, but should be told that she must accept a nurse whom the patient considers to be a man (based on the nurse’s observable and inferrable physical characteristics).

              1. A medical professional should respond to a patient’s emotional needs where ever it is practical to do so. While the clinic in question may have responded to the request technically it should be obvious that they did not respond to the emotional needs. I think this is obvious enough that it calls into question the clinic’s motives.

                Unless a medical professional is being denied employment or income I don’t think they have standing to object.

              2. I think that a patient is and should be entitled to be treated by a doctor/nurse with whom the patient feels comfortable, as this reasonably would be expected to encourage disclosure of embarrassing symptoms and so, better treatment. I believe that includes preferring a nurse of a particular apparent gender, such that apparent gender would be a BFOQ, etc. And I believe that, in the particular case of a transgendered nurse who chooses to present as entirely male, it makes sense to say that a patient should be entitled to choose a different service provider.

                Where I depart from this train of thought is your desire to open it up to “plausible inferences” about the “physical status of the nurse’s body,” which picks up not only clearly gender non-conforming appearances (e.g., the transgender MTF who is still presenting as “male”) but fully transitioned transgendered people and even people who are cisgendered but have gender non-conforming features (e.g., the woman with a square jaw, the man with an effeminate manner, etc.). At that point we’re deferring to “patient preference” that extends beyond how the nurse has chosen to present himself or herself and to details about the nurse that are beyond the scope of a BFOQ. At that point we’ve moved beyond the legitimate “privacy interest” a patient has in being treated by a nurse of a particular gender and into an illegitimate “privacy interest” the patient has in being treated only by cisgendered, effeminate women or masculine men.

                1. You stated that the reason we should honor the patient’s request is that it is “expected to encourage disclosure of embarrassing symptoms and so, better treatment”.

                  But that is not concordant with your later claim about what distinguishes legitimate/illegitimate privacy interests. Specifically, if we learn empirically that patients are (for whatever reason) not as comfortable disclosing embarrassing symptoms with providers they suspect* have transitioned, then the conclusion you provided in the second ‘graph no longer follow from the analytical framework you presented in the first.

                  Furthermore, the “expected to encourage disclosure” justification is so broad that it would sweep in a vast set of patient preferences we probably don’t want to legitimate. For instance, we might empirically find that patients are more comfortable talking about sex/drugs with a younger provider.

                  FWIW, I substantially agree with you about the conclusions and likewise am not super happy about trans-exclusionary tone adopted by a few of the commenters. I would probably read the same result but by a different path: one that cabins the entire analysis to ‘intimidate procedures’ as an exception to the general rule that providers are not bound by patients’ possibly-discriminatory preferences.

                  * Note, this suspicion may not even be correct. It may be innocent or invidious, moronic or malevolent. I don’t think it matters much for the purposes of this argument.

                  1. But that is not concordant with your later claim about what distinguishes legitimate/illegitimate privacy interests.

                    It’s a line-drawing or interest-balancing exercise, sure. I’m not writing a treatise here. I’ll leave that to those professionals who don’t have to read contracts for a living.

                    Your “intimate procedure” exception is in-line with Veleanu‘s reasoning, which Eugene has excerpted in the OP. My objection to this approach is that it is question-begging and doesn’t, by itself, explain why it’s a BFOQ to cater to patient preferences in those cases. What’s sufficiently “intimate” to be able to allow for institutionalized same-gender care? How do we connect those preferences to the institutional response?

                    I personally think a lot of these same-gender preferences issue from cultural biases – biases most of us, I’ll admit, were raised with. If that’s true, then we should maybe take care about how our law reinforces and perpetuates those biases – as it might, by taking them seriously.

                    1. No, it’s not a line-drawing problem, it’s about defining a defensible analytic framework by which we can assess situations. In your case, I claim that your purported justification has serious problems both conceptually and empirically.

                      And I don’t think the ‘intimidate procedure’ exception is question-begging — it resolves one question (when is a discriminatory preference by a patient a BFOQ) by reference to another question (which procedures are sufficiently intimate). That’s not assuming the answer to the former question at all.

                      You might say it raises a subsidiary question about what is sufficiently intimidate, that’s understood and requires some operational test (as you point out). But before we do that, we have to agree on the analytic framework within which we are going to operate.

    4. Oh, they exist. Being nuttier than a fruitcake doesn’t mean you don’t exist.

      Telling a nutcase that they’re crazy, instead of humoring their delusions, is the highest form of respect.

      1. You’re a fruitcake

        Go fuck yourself

      2. I would have figured that wingnuts would stop deriding delusions when they made evangelicals an indispensable element of their electoral coalition, but I apparently disregarded the lack of self-awareness.

        Same principle addresses people who believed a president could repeal economic fundamentals to enable poorly educated, unskilled rural yahoos to prosper at the expense of advance-degreed, accomplished residents of successful, modern communities.

      3. I’m somehow not at all surprised to see the usual gallery of Reason libertards lining up to have themselves counted as transphobes. Why is it that so many commenters on Reason are indistinguishable from the typical Trumpist?

        1. A patient should not have to be injected into a facility worker’s gender dysphoria. It is common sense that if a patient asks for a female provider for an intimate exam…she is looking for someone who shares her biology…..not for someone who might some day somewhat share her biology. If this poses a problem for the facility, then they should clearly explain that to the patient and not simply send in a transsexual.

          1. A patient should not have to be injected into a facility worker’s gender dysphoria.

            A transgendered facility worker should not have to be injected into a patient’s weird hang-ups about the genitals and secondary sexual characteristics of the person who examines her.

            1. The transgendered worker is the one suffering from a serious psychiatric disease, not the patient.

              Of course, political correctness will (probably has) get this serious delusional disorder redefined as normal.

              1. I’m not sure that I believe that people who are so adamant about rejecting transgenderism are exactly right in the head, either. Can I diagnose you as harboring a “serious psychiatric disease,” as long as we’re at it?

            2. So your position is that the patient’s original request was the problem, not her reaction to the particular person that was sent?

              Or to put it another way: should the hospital accommodate requests for a particular gender, but not for a particular sex? Or neither?

              1. So your position is that the patient’s original request was the problem, not her reaction to the particular person that was sent?

                I think that, in this particular case, given where anglophile culture currently is when it comes to gender, the patient’s request was not “the problem,” and the trans nurse should probably have expected and understood the patient’s reaction. Indeed, I’m skeptical that it even occurred the way Eugene has reported – I’ve been unable to find any kind of corroboration of this that hasn’t been in a British tab.

                But more broadly, I think we have to acknowledge that there’s something a bit odd about being fine with a female gynecologist but not a male one. Where does this kind of bias come from?

                1. Not really that weird. The women I know break down fairly evenly into those who want, or even require, a male checking out their private parts, and a female doing such. Part of the latter preference involves a perception of empathy (biological women going through the same things physically, facing the same issues). First heard it expressed by a female classmate, who ultimately went to Med school because of this, 45 years ago. And partly it involves the reality that this is the part of their bodies that is involved in sexual intercourse. It shouldn’t be a surprise that some women are uncomfortable showing this part of their bodies to physical males, if they aren’t going to have sex with them – esp when in many cases exposing this portion of their anatomy to a male means just that – that they are ready and willing. And, some religions, notably Islam, require, or as close to require as possible, that females are only intimately examined by females (which doesn’t include, for many of them, males identifying as female).

                2. But more broadly, I think we have to acknowledge that there’s something a bit odd about being fine with a female gynecologist but not a male one.

                  I don’t acknowledge that. On the other hand, I think we have to acknowledge that there’s something very odd about thinking there’s something a bit odd about women preferring women in certain situations, but not thinking there’s something odd about men claiming to be women.

                3. No. Not weird at all. I’m pretty much an absolutist on the proposition that everyone has an inherent right to decide who interacts with their genitalia.

            3. Why would you presume a hang-up? Isn’t it reasonable to also presume that the patient might have some very personal questions and would prefer a nurse that might have the same biological parts….for example, “do you ever feel X when you are doing Y”? A nurse without a cervix or uterus would be in an inferior position….even someone with an artificially constructed vagina might be in an inferior position. Second, the patient might not know a priori what exact questions or situations might come up during an exam….and her personal past experiences might lead her to prefer a female with the same biology. So the idea that a patient must rigorously defend her choice in order to possibly root out some latent bigotry horribly misses whose concerns should be paramount at the facility.

              1. Why would you presume a hang-up? Isn’t it reasonable to also presume that the patient might have some very personal questions and would prefer a nurse that might have the same biological parts….for example, “do you ever feel X when you are doing Y”?

                If this is the source of your concern in being seen by a nurse or doctor of the “wrong” gender, would your natural response be to refuse to be seen by them at all? Or would it be to proceed as normal and address any issues that might arise, as they come up?

                1. “Wrong” sex” not “wrong” gender”

                  Or do you think they’re the same thing ?

            4. If I do not want a person with XY chromosomes peering into my vagina, palpating my ovaries and giving me a breast exam, how is that a weird hang-up?

              And no matter what you non-scientists say, a human with XY chromosomes is male. Period. By scientific definition. The science is settled, as they say.

              Perhaps we should treat people with psychological disorders gently–perhaps not. When someone asserts a right to be treated as something other than he is, factually speaking, I reserve the right to say no.

              1. a human with XY chromosomes is male. Period. By scientific definition.

                No. A human with XY chromosomes is almost always unambiguously male. But not quite always. For example the SRY gene, which determines the sex of the gonads, sometimes hops onto the X gene during crossing over. So you can get an XX human with male gonads.

                The science is settled, as they say

                The science is settled. Until it’s changed by further evidence. Ask Newton.

                The current state of knowledge in science is that sex cells are unambiguously male or female, the organs that make them (gonads) are unambiguously male or female; but from there on – genitals, body, skeleton, voice, hair, skin, brain – a very small minority have some somewhat ambiguous features. These conditions are very rare, so most people identifying as transgender are actually unambiguously the sex they don’t want to be.

                But the rare exceptions prove that the science is a little bit more complicated than you think.

                1. If it was more complicated then there would be numerous exceptions not rare exceptions to the XX/XY paradigm.

                  1. I don’t follow you, Flame. The exceptions to the XX/XY paradigm are rare, but they prove that the paradigm is only approximately and imperfectly correct. The “anomalous” precession of the perihelion of Mercury was a very tiny fly in the otherwise wondrous ointment of Newtonian gravity, but even that tiny flaw showed that Newton hadn’t got it exactly right. It turns out that Newtonian gravity is a much simpler and beautifully elegant approximation to Einstein’s gravity, and it works very well for 99% of all practical purposes.

                    The XX/XY paradigm is similar. It’s a great and almost universal approximation to the truth. But the rare exceptions show it’s not the whole truth. In science, to disprove a theory, you don’t need a whole pile of experiments in which the outcome turns out to be different from the predictions of the theory. One contradiction will do it.

          2. Who with our current technology will never share her biology.

        2. You transgender activists won’t actually have logical convictions until you also except ablists (those who believe they should have limbs amputated to feel normal) as they show the exact same characteristics. Or transracial. If we are pretending science is based on self perception then you have to accept all from of perception. But the LGBT community doesn’t so that. In fact they are openly hostile to both of the groups mentioned.

          You’re being logically inconsistent.

          1. You’re really an excellent example of the perils of “achievement award” culture. I’m sure your mother thinks you’re a genius.

            1. Gender reassignment surgery shouldn’t be allowed in any case for the ethical reason that outcomes don’t meet medical standards for success. John’s Hopkins were pioneers in gender reassignment surgery but they stopped because the treatment didn’t improve the condition as well as just therapy.

              From the NIH:

              Abstract
              Fifteen years ago the author reviewed the world literature on male transsexualism (Pauly, 1965). Subsequently he summarized the results of sex reassignment surgery for male and female transsexuals (Pauly, 1968), and reviewed the literature on female transsexualism (Pauly, 1974). Very recently, Meyer and Reter (1979) concluded that ‘sex reassignment surgery confers no objective advantage in terms of social rehabilitation’ as compared with a group of individuals who sought sex reassignment but remained unoperated upon at follow-up. Both groups improved over time and led the Johns Hopkins Gender Identity Clinic to conclude that sex reassignment surgery would no longer be offered there. This report, and other non-surgical, psychotherapeutic approaches to gender dysphoric patients (Barlow et al., 1973; Barlow et al., 1979; Lothstein and Levine, 1980) call into question the justification for sex reassignment surgery. Therefore, it becomes important to update the results of sex reassignment surgery for transsexuals. Data on 283 male to female transsexuals and 83 female to male transsexuals are presented.

              1. That’s the greatest evidence that gender dysphoria is a mental illness, IMO: Modifying the body to match the alleged self-image doesn’t resolve the problem.

      4. Brett,

        Just as a thought experiment, do you think that going into a mental hospital and screaming “you’re crazy” while shaking the patient would empirically turn out to be an effective treatment?

        1. No, but I didn’t suggest screaming while shaking the person. I simply suggested refusing to humor their delusions.

          You don’t tell an anorexic they’re fat, and support their efforts at fasting. You don’t tell somebody who’s convinced their arm is an alien parasitic growth that they’re right, and they should really get it removed.

          No more should you humor the delusions of the gender dysphoric.

          1. As usual, you appear to be sane.

            I have a further thought problem: how can a man “know” he is a woman, when the only knowledge he has of actually being a woman is from his observation of women. He has no idea at all what being a woman actually entails. And vice verma, bien sur.

    5. >>To the point: what do you mean by “physically a woman”?

      LOL is this even a real post?

      1. “Physically a woman” is not quite as simple as all that. There’s a hierarchy of traits :

        1. gonads
        2. genitals
        3. loads of secondary sexual characteristics – size, shape, muscle and fat distribution, skeleton, body hair, breasts, skin
        4. brain

        that differ between the sexes.

        “Physically a woman” distinguishes {1,2 and 3} from 4. Almost all transgender people are unambiguously male or female on 1, 2 and 3 (if not 4.) But very rarely there’ll be a real developmental abnormality related to genes that will make 2 or 3 or both slightly ambiguous. I don’t believe anyone has ever found a human with ambiguous gonads but it might happen sometime.

        So although physically most transgender people are unambiguously the sex they don’t want to be, there will be a few who won’t fall into an obvious category. Or their physical appearance will match the sex they’d like to be, except for having the wrong gonads (usually atrophied) and possibly ambiguous genitals.

        1. You forgot
          0. Genes.

          1. Good point. There is this thing called androgen insensitivity syndrome where you can be genetically male but physically female. There was a case where a Spanish athlete was disqualified because tests revealed that she was male. She sued and won.

          2. No I didn’t forget genes. I was discussing phenotype not genotype. And the thing with genes is that the different elements of the phenotype above – ie 1,2,3,4 – are under the control of different genes. The fundamental sex determining gene – the SRY gene – determines the sex of the gonads. But other genes determine the sex of other things. Obviously evolution has arranged that genes for all these things are almost always lined up in the same direction. But sometimes they won’t be, as with androgen insensitivity syndrome, where the expression of genes that would otherwise create male genitals is blocked by the action of other genes. Consequently while it’s true to say that genes determine the fundamental sexually differentiated body part – gonads – it’s not true to say that your genotype is always 100% male or female, because other genes than the SRY gene come into play for secondary sexual characteristics.

            1. Which is to say that there’s a tiny, tiny fraction of the population who are genuinely not exclusively male or female. Few enough that they’re not who we’re discussing.

              1. Well in this little snippet I’m discussing the meaning of the expression “physically a woman.”
                And explaining that it is not 100% unambiguous. Only about 99.9% unambiguous. And since in these discussions, if you get the science even slightly inaccurate the SJWs will jump on the tiny scientific mote in your eye to avoid discussing the giant scientific beam in their eye, my view is that it’s best to get the science right. By which I mean right, not roughly right. It protects you from a flank attack.

        2. In the past, it was true that most transgender people had ambiguous sex, although I think the right term is inter-sex. In the current world, most transgendered people are people with no objective, natural characteristics of their imagined sex, since the current ideological and media fuss about transgenderism is causing all sorts of people with standard traits to suddenly discover that they “are” of the opposite gender.

          It made sense that people with ambiguous sexual characteristics could choose a gender without delusion. It makes no sense at all that today, anyone who wants to can suddenly, and legally, be of a different gender. It makes even less sense that if a 4 year old boy dresses up in a dress and plays with dolls, that he is after that steered into the role of a woman because that is what he “is.” But that is happening a lot in our society, complete with severe mutilation by doctors to superficially bring that poor child’s body into line with the delusion.

    6. He does this all the time. Poses a loaded question, on a false premise

      JAQing, you know

    7. I think we can all say without reservation that patients have a right to see a caregiver they feel comfortable with. When a patient says they are uncomfortable with a caregiver it’s not inappropriate for them to articulate why, at least to give some guidance on finding them a caregiver they do feel comfortable with.

      You seem to think the whole world should revolve around the feelings of the Trans person. Other people have feelings too, and the patient should come first.

      1. I think we can all say without reservation that patients have a right to see a caregiver they feel comfortable with.

        Like: I feel most comfortable with a white doctor?

        I haven’t said anything about how I think this particular case should be resolved. I tend to agree that, when undergoing examinations that relate to one’s genitals or other gender-specific attributes, it makes sense to defer to the patient’s preferences on the perceived gender of the person treating them. I don’t think it makes sense, however, to be so deferential that we are making distinctions based, say, on the medical professional’s genitals or genes.

        1. The problem with your attempted distinction is that if a woman requested a female doctor, and the hospital provided a male doctor – I mean a so-called cismale doctor – who fooled her by dressing up as a woman, nobody would say that the hospital honored her request. No matter how effective the disguise was. Even if the patient didn’t find out until after the fact, she might well still feel violated. The patient is asking for a woman, not a man presenting himself as a woman.

          And the answer can’t be different just because of the doctor’s subjective views about the doctor’s identity.

          1. Because transgenderism is indistinguishable from simple deception, right?

            1. Are you arguing that sending in a man who has clearly not transitioned is “honoring her request”?

            2. No.

              Because deception is indistinguishable from deception.

            3. From the point of view of the patient, pretty much. As I alluded to, the difference is the doctor’s subjective views, not anything objective about the situation.

          2. As I said above, if the patient objects to a transgender woman who appears to the patient to be a woman, I would have a problem with the objection. Or to Simon’s point, there is a big difference between a transgender woman and a man faking being a woman. Many of the comments here don’t respect that difference and come across as hostile towards transgender people.

            1. ” Or to Simon’s point, there is a big difference between a transgender woman and a man faking being a woman.”

              Yes, the latter might possibly be sane.

        2. Why not if a white doctor makes them more comfortable? I’m sure a lot of black patients feel more comfortable with black doctors. My Asian wife openly looked for Asian medical providers in preference to whites.

          You will also condemn me for saying I won’t date a trans person, and I exclusively prefer natural born females 120 pounds and under.

          1. What does your wife think of your dating preferences?

        3. Absolutely. I have enough knowledge of the medical education process to be completely comfortable in choosing white physicians educated in top-tier medical schools, who have distinguished themselves in residency and fellowships, board-certified and old enough to have done x procedure or made y diagnosis many, many times. Until affirmative action is a thing of the long ago past, I will persist in this choice.

          This is life and death we are talking about–I don’t give a rat’s ass about someone’s feelings.

          1. You’re better off choosing an Asian-American physician from a top medical school to the extent that AA matters.

        4. “Like: I feel most comfortable with a white doctor?”

          Are you implying that racist people don’t exist? I feel bad for your students.

    8. The fact you have to ask “what do you mean by “physically a woman” is indicative of the absolute insanity that is inherent to all this. JFC we’re turning ourselves inside out to accommodate people who are mentally ill

  5. The woman was lucky in that she got an apology. Now is she had been in some parts of the USA she may have been charged with a hate crime.
    Maybe before very many people get a criminal record in the US hopefully a person can express their preference without it being considered a hate crime.

    1. Triggered so much that you made up a charge?

      Lot of bigotry, I sense in you

  6. The person said they were female. That is the only thing that matters. The patient has no other option than to accept the facts as they are. She wanted a female and one showed up.

    1. iowantwo: Well, you say that’s “the only thing that matters.” But there are of course two “facts”: (1) The nurse appears physically male, and (2) the nurse identifies as female (at least that’s how I understood, “My gender is not male. I’m a transsexual”). Why shouldn’t we, out of respect for the patient’s privacy, let the patient decide which of those facts matters to her?

      1. What about a different hypothetical – an apparently female nurse shows up and performs the examination, and the patient learns later that the nurse was an (effectively) cross-dressing biological male who identified as female. Is this actionable? Is it wrong?

        1. If the patient did not specifically request a female nurse, I wouldn’t think it would be actionable.

          On the other hand if the patient did specifically request a female nurse, I would think that a an argument could be made that the patient was the victim of a fraud.

    2. The person said they were female. That is the only thing that matters. The patient has no other option than to accept the facts as they are. She wanted a female and one showed up.

      This is one of those comments that was perfectly designed for Poe’s Law. It’s impossible to tell parody from the real thing.

      1. David Nieporent: upvote.

    3. The person said they were female. That is the only thing that matters. The patient has no other option than to accept the facts as they are. She wanted a female and one showed up.

      She also wanted a nurse. Is it good enough if the person who turns up says she’s a nurse ? Or could you hold out for a real one ?

      1. Oh, come on, Lee. It depends on whether the person who turns up sincerely believes she’s a nurse, or is engaging in deception. Do you think there’s no difference between the two cases?

        1. I thought sincerely held beliefs we’re signs of bigotry, or is that only for the religious?

        2. I think there’s a difference between those two cases. But it’s not the difference that the patient is interested in and which formed the basis of her request. She want’s an actual nurse. You don’t qualify if you’re not a nurse. Not even if you genuinely believe you are one.

    4. Don’t be daft. You know the patient meant biologically female.
      Reminds one of that old ad campaign: “oh I’m not a doctor, but I did stay in a holiday in last night.”

    5. So if the surgeon comes into the theater with a chain saw that self identities as a scalpel, all is fine?

    6. That isn’t being responsive to their emotional state.

      What if it were a rape victim? Would anyone who identified as female do then? The request is deeply irrational so responding as if it were rational is just wrong. You can either refuse the irrational request or try to accommodate it.

      1. ppnl writes “irrational” for the 375th time. Drink!

    7. No. She wanted a female and a man in drag showed up.

    8. The person lied. There is no such thing as transgenderism. It is a fantasy and a farce. Saying you are something does not make it so. If you say you are a lizard, are you a lizard?

  7. If I found out the doctor treating me was transgender, either way, I’d demand another doctor. I don’t want a doctor who’s mentally ill. If he/she has a delusion about what sex they are, what other delusions do they have?

    Now for the backlash for speaking the truth..;.

    1. I agree. The modern drive to force people to say men are women, or women men, just because they claim they are?

      “O’Brien held up his left hand, its back towards Winston, with the thumb hidden and the four fingers extended. ‘How many fingers am I holding up, Winston?’ ‘And if the party says that it is not four but five — then how many?'”

    2. I’ve never had a single activist answer why we don’t treat anorexia by helping the person state themselves. They have a perception of who they are yet doctors fight it. Then there are the studies from John’s Hopkins and UW showing ableism and transracial beliefs to be very similar to transgender, yet the left rejects those groups for the most part.

      1. You can’t expect them to get around to everything right away. One step at a time.

      2. It’s a work in “progress” as they rejected Rachel yet accepted Shaun (I’m to fly for a white guy) King!

  8. Only in 2017 do we have apparently grown adults having trouble with the concept that putting on a dress doesn’t instantly rewrite your chromosomes and transmogrify your body. Isn’t this something that even preschoolers used to be able to easily grasp?

    At least the creationists can argue that nobody alive today was around to say for sure that the world wasn’t created 6000 years ago.

    1. It’s not just a dress. It’s also hormone replacement/suppression, breast implants/removal, sex reassignment surgery – none of which change chromosomes.

      But remember, Marxist ideology trumps everything, especially science.

      1. What does Marxism have to do with transgenderism? Why aren’t people “free” to perform their gender in whatever way they please?

        It’s so odd to see so many Reason commenters doubling down on strict gender binaries, enforced through the power of the state.

        1. “What does Marxism have to do with transgenderism? ” Marxism was one of the most powerful movements causing people to have to not only say falsehoods, but be forced to believe them. Marxism also held that mankind was infinitely malleable, since that was the only way to achieve the “new communist man.” Marxism led to Lysenkoism, a biology that sought to override influence of genetics, because Lysenkoism was consistent with the maleabiliy of whatever the sate wanted to change. Finally., Marxism is closely tied to the modern left and informs it to this day in many ways, through its penumbras.

          Much of the modern transgender movement denies biology. It is not, as in the past, a way to help people who are born with ambiguous sexual characteristics, or those with a severe delusional psychological disorder. Rather, it is a post-modernist relativism – if I say it is so, it is so, because… well, because to disagree is to hurt my feelings, which is not allowed;’ well, because to disagree is to oppress me [Marxist oppersionism]; well, everyone is whatever they believe [the inherent irrationalism and anti-science of post-modernism.

          1. Do you believe that “science” also tells us whether we should tolerate same-sex sexual relationships? That it dictates whether interracial marriage is acceptable? Whether women should be the paid the same as men, for the same work?

            I’ll be honest: I think transgenderism is a quirk of history. I think it reflects how societies like ours, with a normally very rigid gender binary, has dealt with people who for whatever reason have developed a preference for gender non-conforming behavior. We’re like Iran that way (which chooses to “re-interpret” homosexuality through a transgender lens). I think that the impulse to identify as “the other gender” will tend to dissipate, the less rigidly we define what it means to be a “man” or “woman.”

            That said – I don’t know what the science behind transgenderism is like. I actually don’t think it matters too much. All I know is that there are some people who claim to have been born the “wrong” gender, and who am I to gainsay them? If they want to be acknowledged and respected as their “chosen gender,” what possible reason do I have to insist on referring to them according to their biological sex?

            Science doesn’t answer that question for you.

            1. ” and who am I to gainsay them?”

              Somebody who’d neither blind nor delusional?

              “what possible reason do I have to insist on referring to them according to their biological sex?”

              Respect for the truth. A refusal to be intimidated into going along with a lie.

              But, yeah, science doesn’t answer that question for you, ethics does.

            2. societies like ours, with a normally very rigid gender binary

              If you think our society has a “very rigid gender binary” don’t be visiting any other societies in this world, or reading about anything that existed in the past. Reality is going to hit you like a freight train.

            3. “All I know is that there are some people who claim to have been born the “wrong” gender, and who am I to gainsay them? If they want to be acknowledged and respected as their “chosen gender,” what possible reason do I have to insist on referring to them according to their biological sex?”

              I generally agree with you, except that for purposes of this thread I don’t. The issue (before it headed off in all directions, as in chasing rabbits) was whether a person had a right to choose against a trans-person when it came to intimate situations requiring the display or touching or manipulation of the human body.

              There actually are some firms lines. If a person actually has a right to privacy (which underlays decisions on use of contraceptives and on abortion), then one has a right to choose the viewer or toucher or manipulator of one’s own body.

        2. It’s so odd to see so many Reason commenters doubling down on strict gender binaries, enforced through the power of the state.

          Enforced through the power of the state? Was someone here suggesting arresting people who claim to be of the opposite gender? (Obviously there are people outside of the Reason commentariat who support laws regulating bathroom use — of course, those people are on both sides of the issue, with some wanting to mandate access and some wanting to restrict it — but I don’t see that here.)

          As for strict binaries, in some ways it’s the very concept of transgender that endorses those binaries. Transgender activists claim that a man who wants to conform to female stereotypes actually is a woman, rather than a man defying stereotypes. (Or vice versa, of course.).

        3. Why aren’t people “free” to perform their gender in whatever way they please?

          Ah, and here Simon inadvertently reveals that he was trolling when he questioned EV about a “biological woman” earlier

        4. “Why aren’t people ‘free’ perform their gender in whatever way they please?”

          Because biological sex and the gender rooted in it is not a postmodern performance.

    2. The creationists can argue with equal merit that nobody alive today was around to say for sure that Abraham Lincoln was president.

      It could have been part of the Jade Helm-Obama birth certificate-Satanic evolution-Benghazi fraud.

  9. 4. Robby, the robot could perform the pelvic exam.

    1. I had robotic surgery but that might be a different story.

      1. Very few people have ever had actual robotic surgery. Now, me, I’ve had “teleoperated” surgery. But until the machine is deciding for itself what motions to make, it isn’t “robotic” surgery.

  10. “…if you think that, then it seems to me that you have to reject the privacy-based BFOQ altogether.”

    This is already be the case in other arenas. For ex., the incident in Seattle, where a morphological man used the women’s changing room at a Seattle Parks and Recreation gym, and refused to leave it, /appears/ to have been a test of their new law that allows people to use the changing room corresponding with their gender “identity.” There is currently no test for gender identity, which is a confounding factor. The person may have been attempting civil disobedience — though the rule in place apparently mitigates the idea that one can be disobedient unless he (to take the case of the morphological male) states that he actually “identifies” as a male.

    There are cases in other domains as well.

    [note] the Reason site will not let me post a link to a USAToday story: just google something like: “transgender rule washington state man undresses locker room.”. I can provide a more precise link.

    1. Is this a Reason thing…that we will not be able to give links anymore?

      1. No, the necessary syntax is just odd, and the site doesn’t automatically turn addresses into links.

        1. Rumor has it that there’ll be a new commenting system Real Soon Now.

          1. If theres one thing I miss about the WAPO comment system its the ability to upvote. Also the newest post going at the bottom is a little strange.

            1. Actually, I rather prefer the newest post at the bottom, since in English we read top to bottom, not bottom to top. But the Post let you pick, so that was fine. But the only other nice thing about the Post’s system was that it told you when there were new posts.

          2. I hope not Disqus. It has a bad habit of identifying anything with numbers in it, or anything over a short paragraph or so, as spam. Not very suitable for anything beyond twitter like commenting.

          3. One of the things that’s depressed me about the whole internet, is the way commenting systems have not measurably improved, often have backslid, over the last decade.

            I mean, really, commenting ought to be a solved problem by now. But you’ve got a wide variety of comment systems out there, essentially all of them broken in one way or another, and usually in ways earlier systems had working.

            1. Right? Bulletin boards and forums were the backbone of the early internet. It’s one of the first things we ever started doing on a large scale with the internet. Why aren’t they awesome by now?

        1. Still not a link.

            1. Well, that’s nice, but doesn’t actually explain how you accomplished it.

              1. You need to use correct HTML code:

                [a href=”http://www.url.com/”] Text here [/a]

                Just replace the square brackets [ ] with angle brackets <>.

                Forgetting the quotation marks around the url is what causes the link to not work, as in Careless’ post.

    2. The recent hysteria over restrooms and locker rooms is helping to reveal how little sense it made to segregate those facilities in the first place, but I expect it will take a few years before people will begin to be able to even consider that it could have been any different.

      1. That segregation has a long and rational history. To believe that unisex locker rooms are just fine is to live in a very different culture.

        1. Long, sure. Rational? How so?

          1. On the one hand we are deluged with #metoo reports showing how sexually aggressive men can be, and in the other hand it’s irrational to provide women with a sanctuary from men when they need to at least partially disrobe to complete essential biological functions.

            Maybe you can explain how irrational it is to my sister in law who had a male follow her into a woman’s restroom and attempt to rape her when she was in her teens.

            Women overwhelmingly want restrooms to be segregated by sex, maybe you should just explain to women how irrational they are.

            I’ve tried a few times in other subjects, but I’ve never gotten very far.

      2. Why bother segregating the facilities at all?

        Would not integrated facilities save money?

      3. Probably the biggest reason we have segregated bathrooms and lockers is one of the main reasons we have sex segregation in the first place. The equivalent of what are now feminists moaned about how evil and predatory men are so women over the generations were cloistered away for their protection. In fact moaning about perverted men is one of the major reasons several colleges have walked back some of their experiments with gender neutral bathrooms. When it comes to cohabitation of sexes in any given industry/space/organization you generally see two distinct forces where on one end there is wailing and moaning about evil men not letting women into field X and how wonderful it will be if only they could get in and on the other side there is wailing and moaning about the trials and tribulations men put women through once they get into field X. This pattern plays out over and over in any field you care to think about…eg the corporate world, academia, military etc etc. Over time one leads to another. If we ever end up forgetting why we instituted gender neutrality in the first place I wouldn’t be surprised if whatever equivalent there is of feminists in the future lead the charge to dismantle it. For the protection of women from men of course.

  11. You can see that the apparatchiks are having none of it :

    Trust policy is to consider seriously all requests for clinicians of a particular gender

    You get to make a request for a particular gender. We may not honour it, but you can make your request.
    But we are definitely not offering you any requests for a particular sex.

    1. Sure. Hospitals may not have somebody of the requested gender with the necessary qualifications. I occasionally get patients–most commonly Muslim women–who request a female anesthesiologist. If it’s daytime and there are a bunch of my colleagues around, I can trade rooms to accommodate the preference. If it’s 2 AM, I may be the only option.

      1. Memo to self : “Never utter obiter.”

        My point was that the hospital was firmly in genderworld not sexworld. You don’t even get to express a preference as to the sex of your clinician.

  12. Discrimination! Transphobia! Bigot! Thus have I refuted you, Volokh.

  13. Oh, EV is Jaqing

    Makes it easy for the wingnuts to bash trans folks., right Eugene?

    1. You seem hysterical.

      1. He/she/it seems to be projecting; which if left untreated one becomes delusional.

    2. Are you on the side of trans folks?

    3. This is an important part of what makes a right-wing blog interesting and somewhat useful.

  14. My understanding as that in the US at least you have the right to go to a different facility, but you don’t have a right to pick who treats you there. If they allow you to request a female nurse or physician it’s just their own policy on how much to accommodate you, so it’s just the facility’s decision whether to accommodate a request for a non-transgender woman. If it’s something that only comes up on race occasion and is easy to accommodate they’ll probably do it. If it starts interfering with workflow because there are too many requests they’ll probably say you get who you get.

    1. If you want to see a remarkable switch in position among right-wingers, mention the issue of special privilege designed to protect religious claimants working in health care, such as at a pharmacy.

  15. As a matter of case law, I think you’re not taking into account how sex discrimination law has been applied to trans people.

    -Equal protection clause cases seem to disallow rules that disfavor transgender people as compared to cisgender people. So a BFOQ rule that allow patients to turn away transgender people (only) with physical traits that don’t meet sex stereotypes would violate that.
    -Price Waterhouse v. Hopkins disallows a rule that allows people to be discriminated against for failure to meet gender stereotypes. So while a rule that said patients could reject any nurse who had physical characteristics that didn’t meet sex stereotypes (e.g. would allow a person to both reject cisgender women with hirsuitism and transgender women with facial hair) would seem to violate sex discrimination law as well.
    -A rule that classified genders by sex assigned at birth or genitalia would seem to violate modern restroom cases, such as Whitaker v. Kenosha, which have held doing so likewise violates the modern Price Waterhose principle.

    So I don’t necessarily think the case law supports the idea that you could apply BFOQ in a way that treated transgender people or gender non-conforming people less favorably.

  16. I’d also agree with previous comments that the phrase “physically a man” is disrespectful to trans people because as previous commenters have mentioned it implies trans people aren’t the gender they identify as. I’d also mention that this standard you propose probably isn’t as simple as you think it is. Transgender people often have physical characteristics that match sex stereotypes of men and women. For example, because electrolysis is expensive, and often uncovered by insurance, it’s common for transgender women to have breasts, possibly have had surgery, but still have facial hair. So it’s not a binary thing.

    You could have a rule that says the patient selects which characteristics they care about, but again, that would seem to run into Price Waterhouse’s rule against sex stereotyping, or equal protection rules involving treating trans people less favorably than cis folks.

    1. I would think that a woman having an intimate physical exam who asks for a female….is asking for someone who shares her biology….who can relate. Can we agree that sending in a man who has not transitioned is not genuinely responding to that request? What the nurse feels about his/her own genitals and appearance is not especially relevant to the patient’s request. If the patient wishes to ask very personal questions about the cervix to someone who also has a cervix (ex. hey doc, do you ever feel X when you are doing Y?), then do you honestly believe that the patient must clearly articulate these reasons as part of the “gender” request…..or should common sense and privacy be assumed?

    2. I’d also agree with previous comments that the phrase “physically a man” is disrespectful to trans people because as previous commenters have mentioned it implies trans people aren’t the gender they identify as.

      What form of words would you regard as respectful ? Plainly there’s a difference between “man, understood biologically” and “man, understood as a statement of gender identity.” Once upon a time “man” unambiguously meant the former. Now, some people like to use “man” for the latter. So the word “man” has become ambiguous. So what is the respectful way to distinguish the two meanings ?

      1. What form of words would you regard as respectful ? Plainly there’s a difference between “man, understood biologically” and “man, understood as a statement of gender identity.” Once upon a time “man” unambiguously meant the former. Now, some people like to use “man” for the latter. So the word “man” has become ambiguous. So what is the respectful way to distinguish the two meanings ?

        The official P.C. jargon is “cismale” vs. “trans male.” The former refers to a male who is biologically male; the latter refers to a female whose gender identity is male.

        But nobody talks that way in the real world, of course.

    3. I’d also agree with previous comments that the phrase “physically a man” is disrespectful to trans people because as previous commenters have mentioned it implies trans people aren’t the gender they identify as.

      But it’s, you know, true and correct.

      1. I still think the respectful thing, when confronted with somebody who’s delusional, is to be honest with them. Respect them as being strong enough to hear the truth, and give them a chance to shed their delusions.

        1. How would you be honest with an evangelical, Brett?

          1. Do you feel obligated when confronted with a religionist to pretend you accept the truth of their religion? Where, except gender dsyphoria, are people thought to be obligated to pretend agreement with others’ beliefs?

            1. Should schools that teach nonsense be accredited?

              1. I suppose that depends on how competently they teach it.

    4. “I’d also agree with previous comments that the phrase “physically a man” is disrespectful to trans people because as previous commenters have mentioned it implies trans people aren’t the gender they identify as.”

      Why assume bad faith here? “physically a man” means has a penis. A person can identify as a woman but yet have a penis. A person can also identify as a man, but not have a penis. The former is “physically a man” but the latter is not. And both those things can be true without implying anything about gender identification. How would you describe “has a penis” in a more respectful way than “physically a man”?

  17. Once again, I have zeitgeist confusion. So let me see if I have this straight:

    1. A gay couple goes to a bakery, and just before ordering they find out that the baker is a devout Christian. This makes them uncomfortable, so they take their business elsewhere. Most people agree, the gay couple should be allowed to do this.

    2. A woman goes to the doctor for a gynecologist exam, and just before spreading her legs and having her vagina probed, she finds out the examiner is a transsexual with obvious original XY chromosome orientation. This makes her uncomfortable, and she wants to ‘take her business’ elsewhere. But this is a Thought Crime, and she should NOT be able to do this.

    Cake Choice is a Natural and Inalienable Right. ‘Give me Cake or Give Me Death!’
    But Vaginal Probe Choice? [Yawn] ‘Meh.’

    1. I don’t think (even in UK) that things have reached the point where individual consumers are bound by non-discrimination laws. Bigoted customers don’t have to be accommodated, but they are (usually) allowed to take their business elsewhere.

      It does get a little shadier if the individual is self-employed and the transaction has to do with their business.

    2. Not the same thing. The patient is presumably free to go elsewhere, just like the gay couple.

      1. The patient is free to go elsewhere. But

        (a) with single payer there isn’t another elsewhere. Or all the other elsewhere’s are under the same management

        (b) even without single payer, all the other elsewheres are subject to the same regulations. And those regulations may well prohibit any elsewhere from discriminating against transgender folk. Which would include accommodating patient wishes to be seen by a “biological” as opposed to a transgender woman.

        This is analogous to the Texas abortion law. Of course you can have an abortion. It’s your constitutional right. Now try and find someone authorised to perform it.

        1. Re: (a) Is it true that in a single payer system there’s no where else to go? I had understood that in the UK you could still opt to go see a private doctor.

          1. “I had understood that in the UK you could still opt to go see a private doctor.”

            Yes. They haven’t outlawed private docs (yet). You just pay out of pocket. But you get immediate care and — I guess — a provider with the social, biological, and sexual characteristics of your choice.

            It’s legally dicier in Canada, where: “Under federal law, private clinics are not legally allowed to provide services covered by the Canada Health Act. Regardless of this legal issue, many do offer such services”

            http://www.canadian-healthcare.org/page6.html

          2. Isn’t this a definitional point ? If you can go to a private doctor so long as you pay yourself or via private insurance (as you still can in the UK) then have you got a single payer system ?

  18. I will just state the obvious. If there is not a fundamental right of bodily privacy as enunciated by the Supreme Court and other federal courts in the doctor’s examination room, then the entire legal basis for Roe v Wade and the cases that emanate from it, is seriously undermined, if not unsustainable. The most interesting thing of 2017 is the number of womens’ groups for whom that is just fine, i.e. the right of bodily privacy is conditional, not fundamental. For example, they claim an absolute right of privacy for a woman to abort a fetus up to the ninth month, but not a right of privacy to change their clothes in a lockerroom, take a shower without a biological male being present if one so insists. It would be humorous if it were not so serious, to see how the courts get out of a conundrum of their own making.

    1. I think “privacy” in Roe v Wade means a different thing than personal privacy. It simply means that it is not a public decision that the government has a say in. It is not the right to keep a secret so much as a statement that the government has no compelling interest in the choice. In that sense it is a limitation on the power of government. A negative liberty.

      1. Has the reasoning in Roe ever been applied to any other medical procedure? Medical devices, lifesaving experimental procedures?

        I get the impression it was just a bit of handwaving to reach the intended result, and not really taken seriously otherwise.

        1. Has there been occasion for a court to apply such reasoning?

          1. I’d assume such occasions could be created easily enough.

          2. IIRC there have been other occasions. I remember some during the HIV crisis and the long delay for potential drugs not cleared by the gov’t. Same for other issues like cancer treatments where the patient wanted access to take the drugs yet the gov’t wouldn’t let them.

      2. ppni: “I think “privacy” in Roe v Wade means a different thing than personal privacy”

        Well…the actual behaviors in relevant cases leading to and following Roe (use of contraceptives in sex acts; privately owning pornographic material [I won’t get into the kiddie porn issue], performing otherwise illegal sex in one’s own bedroom; performing homosexual sex in one’s own bedroom [this took longer]), certainly suggest a right to actual /privacy/.

        It’s also inherent in the 4th amendment etc. (oh my God, I’m wading into the penumbra here!)

  19. When I was in med school, it was already to discriminate on the basis of race when hiring someone, but we still asked the patients if they desired to be treated by docs and nurses of the same race as their own (“race-matched” health-workers). The patient’s comfort comes first.

    1. Oops, left out a word, should have written “…it was already ILLEGAL to discriminate…”

      1. We all knew it’s what you meant.

  20. Such are the dilemmas of intersectionality. If the patient were both Muslim and a woman, would that be enough to entitle her to a female nurse?

  21. The “BU-BU-BUT INTERSEX PEEPULS EXIST TOO!” canard that progs always pull out for these kind of arguments always puzzles me. Since the vast majority of ‘transsexual’ people aren’t biologically intersexual at least to the same degree as those that are considered truly intersexual. And if you assumed they all are that just reinforces the argument that there is an objective quantifiable basis for sex which men objectively lie on one side of and women lie on the other side of, men and women are not interchangeable or equal, and theres no such thing as gender fluidity.

    1. “…arguments always puzzles me.”

      Boy I did not see that plot twist coming.

  22. Prof Volokh –

    ?Is this relevant to the bathroom controversy as well?

    ?A female family member of mine recently had to have a rectal exam. The performing doctor in the ER had to wait until there was a female doctor or nurse to chaperone (that was the hospital’s term). I wonder if that chaperone could have been biologically male / female identifying and if so, if the patient could have objected. I wonder if the fact that that was a hospital rule makes any legal difference….

    Thanks, and — thanks for moving to this more accessible site.

  23. It appears that if transgendered people want any sympathy or understanding from movement conservatives they must tie their claims to religion.

    Perhaps in another time or place, when religious claimants are disadvantaged by similar discrimination (for example, in the health care setting), it could be transgendered people who are to show themselves to be the better people and provide assistance.

    1. Since we’re just talking about a pointless, counter-productive culture war issue, I don’t think conservative culture warriors are going to jump on the transgender train just because they made it a religious issue. They’d need to sell specifically to Christians.

      1. Does it count as a culture war if only one side is actually firing, and the other one cowers in its dugout saying “Please stop shooting at me !”

  24. It is always difficult for providers to encounter patients who confound them with all their various ailments — not only are they ill, they are ornery, and it is the provider’s obligation to deal with it up to a point.

    But this situation challenges that point. Suppose the matter were addressed by following current practice out another level to accommodate transgender or other heretofore non-mainstream gender identifications. If the setting is one in which I would ordinarily be able to state a preference for a male or female provider (the gender traditionalists), then it would seem that in that setting I would also be able to state a preference if another human iteration were involved (the gender pioneers). The rule is the same, essentially, and governs patient concerns that can be accommodated where possible.

  25. If a woman’s privacy is subordinate to another person’s alleged feelings of gender identification, this will greatly simplify a frequent problem in criminal corrections. Often when I worked in the jail a female prisoner would require a cavity search but no female officer or nurse was available (it was problematic whether the corrections supervisors could ask medical personnel to do such searches in the first place, as the policy on this kept changing and became extremely complex.)

    However, many male jail guards might willingly profess to be transgender in order to expedite searches of female prisoners that needed to be urgently completed for operational and security reasons.

  26. Pemahaman saya seperti itu di AS setidaknya Anda punya hak untuk pergi ke fasilitas yang berbeda, tetapi Anda tidak punya hak untuk memilih siapa yang memperlakukan Anda di sana. Jika mereka mengizinkan Anda untuk meminta perawat atau dokter wanita, itu hanya kebijakan mereka sendiri tentang seberapa banyak untuk mengakomodasi Anda, jadi itu hanya keputusan fasilitas apakah akan mengakomodasi permintaan untuk wanita non-transgender. Jika itu adalah sesuatu yang hanya muncul pada acara lomba dan mudah untuk mengakomodasi mereka mungkin akan melakukannya. Jika mulai mengganggu alur kerja karena ada terlalu banyak permintaan, mereka mungkin akan mengatakan Anda mendapatkan siapa yang Anda dapatkan.

Please to post comments

Comments are closed.