Privacy

Sex and Transgender Employees: A Thought Experiment

|The Volokh Conspiracy |

The discussion of accommodating patient modesty-based preferences (see this post about the cervical smear test and the transgender nurse) led me to a hypothetical that I thought I'd raise. I realize that it's unusual, and may be on one end of the spectrum of when gender should matter; but like many possible edge cases, it can help us think through other cases as well, and decide which ones (if any) are analogous to it. I'd especially like to hear from people who would generally come down on the transgender rights side of the debate in most other employment contexts.

Let's assume a country or state in which brothel prostitution is legal (as it is in some Nevada counties and in some European countries). And let's assume a brothel that caters to many sexual orientations, and as a result has both male and female prostitutes working in it. (I'm not sure whether brothels do indeed follow this business model, but say that they do.) Finally, let's assume that street prostitution and even online direct-contact prostitute hiring is still illegal, so the brothels are the only game in town.

A gay man comes to the brothel, and says "I'd like a man to perform oral sex on me"; he's not picky about the man. They go to the room and start to get down to business—but the gay man realizes that the man is physically a woman. (Perhaps the prostitute strips down, and the situation becomes evident, or the customer feels something unexpected during foreplay, or the customer just recognizes that this is someone who he has heard is transgender; assume there's no doubt about the physical fact.) "Wait, I asked for a man!," the customer says. "I am a man," the prostitute says; "I self-identify as a man. And what do you care about whether I have a penis? You're just asking me for oral sex." "I don't care how you self-identify," the customer says, "I want someone who is physically a man, even if I'm not going to be touching his genitals." The customer leaves (without paying) and complains to the brothel.

What do you think is the sound answer here?

A. The brothel operator should be legally forbidden from assigning prostitutes based on sex at all, at least when it comes to oral sex. The patron's desire for a prostitute of a particular sex is not rational—the physical act, after all, is the same regardless of the performing party's sex. And such customer preferences, including nonrational ones, can't justify gender identity discrimination in employment. (To be sure, unlike the man in our hypothetical, customers of brothels often care about other aspects of a prostitute's physical appearance, and most physical appearance discrimination is not illegal, at least in most places in the U.S.; but the point of gender identity discrimination law is in part to bar discrimination based on certain aspects of physical appearance.)

B. The brothel operator should be legally free to assign prostitutes based on sex, but the prostitute's self-identified sex is all that can matter. Once the objecting customer hears from the prostitute, "I self-identify as a man," that should be enough for the customer. (Again, we're talking about a sex act that's physically identical regardless of the prostitute's genital equipment.)

C. The brothel operator should be legally free to assign prostitutes based on sex as the customer understands the sex. If the customer says, "No, I want to have oral sex performed on me by someone who has a penis, even if I don't actually touch the penis during the act," then the brothel operator should be free to accommodate that.

It seems to me pretty clear that the answer is (C)—that while human sexual reactions may not be rational, they are legitimate features of people's preferences that merit accommodating, even in a regime that generally bans sex discrimination and that requires businesses to treat most employees based on their self-identification. Indeed, because the choice about whom to have sex with is such an intimate choice, even when done commercially and on a one-time basis, it would be wrong for the law to stop a customer from having this choice, at least once prostitution is generally legalized. (I recognize, by the way, that some customers may prefer to have sex with transgender people; I'm only focusing here on those who don't.)

Now if you agree with me about that, then the question is how far this analogy goes. A few options:

[1.] It doesn't extend at all beyond this hypothetical, because sexual contact is different—the only place where it's legitimate to care about the physical genital equipment of the person you're having sex with. (Perhaps your view might be that sexual arousal is nonrational but can be taken as a biological given, which we should accept rather than trying to change, but that sexual modesty ought to be fought; if so, would it matter if the patron is bisexual, and could be aroused by someone he perceives as a woman, but just happens to right now want someone he perceives as a man?)

[2.] It does extend at least to medical tests that involve genital contact—a person should be free to decide whether it's a man or woman touching the person's genitals, and should be free to focus on perceived physical attributes and not just self-identification in deciding that gender—and that's true whether the underlying nonrational concern has to do with sexual stimulation or with sexual modesty.

[3.] It extends to all situations where sex discrimination is generally allowed, for instance where the job involves seeing people naked; once we conclude that sex is a bona fide occupational qualification for a particular job, the exemption from the ban on sex discrimination should also apply to the ban on gender identity discrimination.

[4.] No need for the analogy; you think it's fine to stymie would-be sex buyers' sexual pleasure by rigidly enforcing antidiscrimination law, but you think it's not fine to stymie people's privacy preferences, when it comes to medically necessary procedures.

[5.] No need for the analogy; you think gender identity discrimination should generally be permissible even if sex discrimination is not.

Just to anticipate a possible reaction, of course I recognize that many people view prostitution as immoral, entirely apart from the gender questions raised here, and that very few view medical genital exams as immoral. But I'm not trying to draw an analogy between the moral status of the underlying actions—I'm trying to draw an analogy between nonrational preferences (whether related to privacy/modesty or to sexual pleasure) when it comes to deciding who touches one's genitals. And, finally, of course I'm not claiming that transgender people are any more likely to be prostitutes (or for that matter nurses); I'm just asking what should happen in a case where a prostitute is indeed transgender.

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  1. I always understood (from reading, understand) that the customer in a brothel had some sort of choice as to looks, figure, hair, etc. before engaging the services of a prostitute anyway, and could ‘inspect the goods’ before services were rendered. Seems like the folks who present as the sex not requested could be weeded out then, or the customer could ask directly. That is, unless the law required a version of ‘Hobson’s Choice’, where the customer took the next prostitute in the rotation, regardless of sex, gender, looks, etc.

    Or for a real-life what-if, consider the massage chain in D.C. that had a male employee accused of groping several female clients during massage. Would a future female client be justified in asking for a heterosexual female masseur, due to valid concerns about male masseurs assaulting them?

    1. Your comment demonstrates the problem of conflating “sex” with “gender identity.”

      Sex is a scientifically measurable differentiation in humans with XX and XY chromosomes. The chromosomes largely present themselves with obviously differentiated characteristics (primary and secondary sex characteristics) which ultimately (in most, again) serve to propagate the species through sexual intercourse.

      Gender identity is completely unmoored from propagation of the species, and is instead an internal, subjective “sense” of how an individual views themselves in relation to the existing cultural and social norms and behaviors. It may be fixed or transitory, but it is not observable (hence the need to address people confused about their sex by whatever pronoun they TELL you they are–no one else can tell you what “sex” someone else is).

      Sexual attraction is based on biological sex–not what the other person thinks they are, or wants to be. You see their sexual organs (or what you suspect them to be), and your sexual attraction starts there–presumably for propagation purposes.

      1. Up until a few decades ago nearly everybody thought in terms of ‘sex’. Then somebody invented the term ‘gender’ pillaging the linguistics vocabulary. When it was pointed out that sex is biological and could not be changed through the power of fond wishes instead of correcting themselves they somehow managed to get the rest of the world to substitute the far more useless and amorphous ‘gender’ term for ‘sex’ so they could go on claiming they were always right. Sometime the world is so ridiculous you cannot make this stuff up.

    2. Since I think it’s perfectly fine to request a partner with specific physical or racial characteristics, I don’t see how requesting someone with a specific type (or size, or modification of) genitals is problematic. If you go to a brothel and want a black, pre-op, male-to-female transsexual, I don’t see why there should be a law making it impossible for the brothel to meet your request (assuming such a prostitute was available to them.) If you look at the way pornography is often categorized for various tastes, you’d see that this sort of thing is pretty common.

      Which is why I think the OP’s hypothetical isn’t helpful. When it comes to brothels, you should be able to choose things like hair color and race that you shouldn’t be able to choose when it comes to your doctor.

      1. Which is why I think the OP’s hypothetical isn’t helpful. When it comes to brothels, you should be able to choose things like hair color and race that you shouldn’t be able to choose when it comes to your doctor.

        You seem to be begging the question. You say that one should be able to insist on a prostitute of a certain race but not a doctor of a certain race because people should be allowed to do that in the prostitution context but not in the medical. What is it about the prostitution context that is not present in the medical context?

  2. Like Jerry, the first thing that came to mind when reading this post was the massage industry (though I assume the legal escort industry could raise similar issues). In at least some jurisdictions, it is common that customers can specify whether they prefer to have a massage done by a man or a woman, so the same question could arise: Is it the customer’s perception/understanding or the self-identity of the masseuse that should control?

    1. I imagine that the customer’s preferences should control, which is why it’s helpful to have the prefixes “cis-” and “trans-” available.

  3. I’m somewhere between (2) and (3). If sexual privacy or gratification is implicated, discriminate away. If gender is a job qualification, one should look deeper into whether the job requires only presentation (e.g. Hooters waitress, actor) or if it implicates sexual privacy — even without genital contact (e.g. nude photographer, locker room maintenance). Edge cases: Restroom attendant, masseuse.

    1. If “intimate contact” is a determinant, what of a paramedic who declines to administer mouth-to-mouth resuscitation, or stick fingers into a wound, or the like, for

      1) black people
      2) Christians
      3) gay people
      4) non-Christians
      5) Kardashians
      6) undocumented immigrants
      7) Patriots fans
      8) Latinos
      9) Trump voters
      10) socialist Muslims believed to be born in Kenya?

      or the hospital patient who asks not to be treated “intimately” by anyone from one of those groups, or by anyone educated in a former Confederate state, or by anyone who did not graduate from a religious school, or by anyone who owns a gun?

      1. So you’re confusing what the employer may do with what the employee may do. If the paramedic declines to administer mouth-to-mouth to anybody, that’s a BFOQ on which the employer can legally terminate or screen against the paramedic. That’s because administering mouth-to-mouth resuscitation is central to the services performed by paramedics. The paramedic would probably be required to provide the assistance under other laws (EMTALA maybe) as well.

        As to your question re: the hospital patient, I think it’s uncontroversial that every patient has the right to ask for this, since anti-discrimination laws don’t apply to consumers. The issue is whether the seller may legally comply with the request, and when. Opinions vary, and the OP provided a menu of options. What’s your view?

        1. The questions differ — can an employer refuse to fill a prescription or provide other medical assistance; can an employee decline to do so or insist on doing so, in congruence or conflict with an employer’s wishes; can a patient request (or insist upon) a particular caregiver? — but the applicable standards seem to be (or at least should be) largely similar.

          I generally support public accommodation laws, and wonder about the thinking of people who oppose them (because, as Dylan observed, the wheel is still in spin). If exceptions are to be established, however, I sense they should be applied to the (currently) favored and disfavored alike, and that conscience-based exceptions should not be allocated based on supernatural claims.

          1. “can an employer refuse to fill a prescription or provide other medical assistance”

            If you’re asking for my personal view, the answer should be no. I’m generally opposed to anti-discrimination laws (for reasons stated below) but will carve out an exception for medical/health/life-saving/etc. Of course I believe a patient can request and insist on a particular caregiver; patients shouldn’t be coerced into seeing a doctor they don’t like (because the person is Catholic, or voted for President Trump, or allows guns in the medical office, etc.). Public accommodation laws exist to protect consumers of services, not producers of services.

            (cont.)

          2. (cont.)

            “…and wonder about the thinking of people who oppose them…”

            I’m a person who opposes them generally. My thinking is that public accommodation laws mostly don’t work in democracy, since the necessity of a public accommodation law being passed is inversely proportionate to its likelihood of actual passage. I think it is immoral to discriminate against gay people, and would avoid any business or association that actively did so. But having the law require religious people to serve non-necessary wedding cakes to gays simply fuels a culture war that does immense damage to the human condition. I also think anti-discrimination laws have the effect of either (1) sending racists into hiding, where it’s more difficult for us to either ostracize them or engage them in a way that will change their minds; or (2) turn racists (or religious nuts) into martyrs when the state throws them in prison for, e.g., refusing to bake a cake. I think the net result of these policies is that there are more racists than there would be in a world without the broadest anti-discrimination law imaginable. That seems to comport with American’s self-reported increase in racial animus, which has been going in the wrong direction for most of my adult life.

            (cont.)

          3. (cont.)

            I also think anti-discrimination laws (in a democracy) are going to favor those minorities with political power over minorities without political power, and so we have this regime in the US where religious objections are a protected class, not because they deserve or need protecting, but because Christians substantially outnumber the rest of us.

          4. The questions differ — can an employer refuse to fill a prescription or provide other medical assistance; can an employee decline to do so or insist on doing so, in congruence or conflict with an employer’s wishes; can a patient request (or insist upon) a particular caregiver? — but the applicable standards seem to be (or at least should be) largely similar.

            Under present federal anti-discrimination laws, employers must make reasonable accommodations for employees who, for religious reasons, refuse to fill prescriptions or haul beer.

  4. My understanding is that in entertainment you can discriminate by physical characteristics if it’s relevant to to the job so you should be able to do so here, even just for oral sex from an man identifying as a woman. I think you should be able to do so in the case of having sex even beyond limits acceptable because it’s entertainment, but I don’t know how that would matter to the law.

    In medicine I think the question isn’t so much shkulld you be able to demand a woman or man, since often there’s limits to staffing and you just have to accept whoever is available, and if you don’t like it you can leave. The question is, if they are willing and able to accommodate you can they do so. I say yes, but the law may not agree. However, you would need some nurse or doctor who wanted to sue their boss and could show harm, which would probably require more than an occasional request, and also they’d have to show that they were getting less hours, or less money due to so many people requesting not to see them. Since, most people just go along with things especially in a medical context and using your boss is not great for future job prospects I don’t expect any law suits soon.

    1. If we pretend that oral sex from someone who is fully clothed is a less expensive option (as there’s no doffing/donning time), is sex/genitals relevant to the job?

      1. Yes, because the service is as much fantasy as fellatio.

  5. Caveat emptor is my attitude. If the client is really concerned about the genital equipment, he should say so when talking to the brothel operator. All this takes is adding one extra word to the request: “I’d like a cisgender man to perform oral sex on me”. Preferring a cisgender man or a transgender man is no different than preferring a Black man or an Asian man as far as I am concerned.

    1. That was my take, once I got past the questionable use of “man” and “woman.”

  6. I have a related example that is not so extreme. I spent a couple years on a review board that would adjudicate military disability claims. Sometimes people would appeal their cases in person, with an attorney, which they had a right to do. On rare occasions, someone who was a member of a minority group asked that a member of that group be on the panel. So if the servicemember was black, for example, he might want at least one black member on the board. We had no problem with this, and it was usually easy to do. When we knew going in that the medical issues involved female specific issues, if there wasn’t a female officer assigned to the board already, we would routinely swap someone out so there would be a female on the board. Was this a type of discrimination? Should all this have been illegal?

  7. There are people (probably not a whole lot, but fairly vocal) who view it as transphobic to care about your partner’s genitals, or whether they are trans.

    1. Junkie: “…view it as transphobic to care about your partner’s genitals, or whether they are trans.”

      Oh I’d say they’re very, VERY vocal, and what they call for is — in the interest of the trans person’s sexual self being free — that your own sexual self be disallowed.

      1. Of course they are vocal.

        So few people actually concur.

  8. I believe people should, for several reasons, be prepared, when determining the discrimination terms they would impose or accept with respect to transgendered people, to accept those terms with respect to discrimination involving other attributes (embrace or rejection of science; political affiliation; attending (or not attending) a top 100 (or unranked) university; homeschooling; being raised in Mississippi or New York; religious affiliation; graduation from a school accredited by a particular source; gun ownership; ACLU membership, etc.)

    Or, just check the lyrics to The Times They Are A-Changin,’ which explained the situation deftly (and enjoyably) a half-century ago.

    And, perhaps, consider how the norms of a half-century ago are regarded today.

    Also instructive, and enjoyable.

    1. Can you spell tedious, ak? I knew you could.

      1. It is consistent standards, or Bob Dylan, or modernity to which you object most strenuously, original jack?

        If it’s those damned kids and their new-fangled hippity-hoppity-rappity music that bothers you, here’s something you are likely to like better.

        Enjoy!

        1. You’re boring, ak. And the most boring people are those who mistakenly believe they are clever. Over multiple platforms you still have not found one person who thinks or posts kindly about you. If you were half as clever as you think you are that should tell you something important.

          1. I’ve posted in agreement with “the Rev” several times. Maybe you’re confusing thinking oneself clever with simply having a different opinion?

          2. Close-minded, backward, authoritarian wingnuts tend to dislike my contributions.

            Others tend to like them.

            I am content.

            Enjoy the soundtrack.

            1. Close-minded, backward, authoritarian wingnuts tend to dislike my contributions.

              Self-hating, Rev? Well, carry on as you will, though I imagine that’s a tough way to go through life.

    2. I would not support a ban on transgender individuals from driving, but I do support such bans for the blind. These are both “attributes”. By your measure, I guess I’m a hypocrite.

  9. “I’m not sure whether brothels do indeed follow this business model”

    A good professor would be willing to do on-site research with hands-on application just to be sure of his subject.

    1. Thousand points to you sir!

    2. I was hoping someone would suggest this.

      In fact, there ARE “brothel[s] that cater[] to many sexual orientations, and as a result has both male and female prostitutes working in [them].” Many such establishments exist in the DC area and the patron typically makes choice — between male, female, and trans — in private: apparently, it’s OK to go to a brothel, but less acceptable to be “outed” for a particular preference.

      On a related note, some cities still have (often ignored) building code requirements which target certain sexual preferences: for example, certain bars are prohibited from having entrances visible from the street. [You could determine an establishment was a gay bar permitting nudity because its entrance was in the rear — and we’ll leave the irony of that aside.]

  10. I am generally supportive of transgender rights and vote for (C) and then [3] if the transgender woman phenotypically presents as a man.

    However, I would like to know what Eugene’s opinion is of a slightly different hypothetical.

    Suppose the customer was happy with the oral sex, but found out afterward that the prostitute was a post-operative transgender woman who is phenotypically a woman, including not having a penis. The customer now objects because he believes the person is a man based on genotypic sex. I would then vote for (A).

    1. I was wondering if someone would find the challenge-to-the-challenge 🙂

    2. What if a blind straight man who thought homosexuality was a sin, asked for a blowjob from a woman, enjoyed the blowjob, but found out later that the person giving the excellent blowjob was actually a man? There’s something odd about legally prohibiting a brothel (of all places) to cater to its patrons sexual desires.

      1. I thought changing your morality to get what you want is what prostitution was all about.

  11. Frankly tangential, but somewhat similar, is something I’ve pondered.

    Many prostitutes, including many who are Black, run ads specifying “no black men,” or “no aa.” (In interviews they have usually told me the justification for discrimination is not racism but problematic experiences.) Are prostitutes providing a “public accommodation” which should cause them to be prohibited by law from discriminating based on race? (Obviously this would only matter if prostitution were to be legal.)

    As a libertarian I support the right of prostitutes to set any criteria for clients (to discriminate), but it isn’t hard to imagine that the equality enforcers would insist that they serve protected classes. Perhaps this might also include mandating that heterosexual men provide sex to gay men, or lesbians to hetero men.

    1. I’m reminded of discussion here around perhaps 2010 that a new hate crime law would make hiring only prostitutes of one sex a hate crime.

    2. I have no idea whether or not this is accurate, but I have heard that those specifications are added in the belief that vice police who might be running a sting operation are prohibited from including those specifications (no black men/etc) in their own ads. So it’s supposedly a line meant to signal ‘look, I’m not a cop.’

      I suspect that the veracity of the supposed advertisement prohibition is about equal to the canard that a cop can’t like about being a cop when asked directly whether or not he is one, but then I’m not in a position where that knowledge would prove particularly useful, so I haven’t looked into it.

  12. How about none of this is within the legitimate scope of the law.

    All discrimination should be legally permissible.
    We voice our displeasure with the non-violent conduct of others through our own choices.

    You entire argument is rife with the presumption that there is a right answer – aside from none of this is governments business.

    Each brothel can have its own standards, each medical facilitiy its.
    Customers can decide who to frequent based on these and other criteria.

    It is probable that the majority of businesses will favor the predominate customer preference, but many small businesses may thrive by catering to customers with unusual preferences.

    1. So if all local medical facilities refuse to serve a certain group…that’s just the market knowing best?

      Cartel behavior in businesses is already bad enough, your idealistic plan contains fundamental inequities that your faith in the probable behavior of most businesses is insufficient to address.

      1. So if all local medical facilities refuse to serve a certain group…that’s just the market knowing best?

        So you’re going to pretend that an rare edge case is commonplace ? Folks might misbehave so you demand the right to control them ? I am sure it is for their own good. Somehow I think as with most progressive boogeymen the suggested discrimination would fail to materialize.

        If a cartel or monopoly appears, fix the problem when it occurs. My guess is real discrimination by medical facilities be would utterly non-existent. Most of the cartels that I can think of are backed and created by government fiat. Perhaps you would do more good by arguing against the factors that actually create the cartels.

        Heck, even in the bad old days of the deep South, it took progressive laws and guns to force the market to back off. It is amusing that Plessy was backed by those nasty railroad corporations, while as usual the progressives argued that without prior restraint, folks might do the morally wrong thing and mingle. Can’t let those amoral corporations pursue profit by streamlining the process can we ? It seems morals change with fashion. Fashions might change, but progressives remain the same.

        1. It could very well be commonplace.

          The larger point is that the rational marketplace is bunk. After subsistence is taken care of, humans are tribal well before we are acquisitive. Cartel behavior may not be something you can regulate, especially in small towns.

          Your guess is just optimism, and despite your revisionism recent racial history shows it’s not a very good guess. Don’t let your desires author your assumptions.

          1. Does that mean I think there need to be laws that every job be open to everyone? No; if a customer doesn’t want a wang, they should be able to avoid a wang.

            I just think it’s glib to the point of idealistic ignorance to make the very broad statement ‘all discrimination should be legally permissible.’

    2. All discrimination should be legally permissible.

      Should a physician, nurse, or pharmacist be entitled to decline to provide medical assistance — ranging from emergency stabilitization to a prescription — based on the answer to ‘for whom did you vote in the most recent presidential election?’

      Thank you.

      1. Yes, they should be able to decline, so long as it doesn’t violate their employment contract or other binding contracts. However, almost all medical facilities would not allow their employees to act in such a manner.

        You’re getting hung up on “permissible” while the meat is in “legally.” Very few people would argue that it is morally permissible for doctor to act in such a manner, but I do believe that they should be legally able to discriminate. As an example of the different permissibilities, most people would not prefer to kill anyone, even in circumstances in which it would be legal. But even when courts have decreed that such acts were legal, the killers are often shunned; c.f. George Zimmerman, cops who’ve received qualified immunity, and bad soldiers. Clearly people don’t believe that it was permissible, though it may be legally permissible.

        BTW, I find your reliable snark about the non-libertarian attitudes of others (including the Conspirators) to be incongruous with this comment’s snark towards a genuine and common libertarian position. If you really wish for others to engage you more honestly, you should dial back the contrarianism a bit.

        1. “…towards a genuine and common libertarian position.”

          Is this even true? I’m not aware of any libertarians arguing for the repeal of hospital obligations under EMTALA.

        2. The notion that a position espoused by a fraction among a fringe is a “common” position is baffling.

          The notion that you can determine historical fact by reasoning from ideology used axiomatically is mistaken.

  13. I vote C and then 3.

    However, I wonder if it makes a difference if the employee is a government worker or not.

    A public hospital or medicare facility, versus private.

    It seems to me that it would make a difference.

    1. Would you factor in “only medical facility within an hour drive?” There are quite a few places where that’s the case.

  14. I agree with this in-depth approach and with [C], but take a position somewhere between [2] and [3]. A business ought to be allowed to accommodate the reasonable sexual modesty of any person in situations where he or she may be seen naked and/or where anyone’s genitals may be touched. This includes discriminating in the rules for use of multi-user public bathrooms, at least if a single-user bathroom is provided.

  15. I agree with C and 3 as well, but I would add that the hypothetical rests on a false premise: That a BJ is the same “regardless of the performing party’s sex.” This absolutely untrue. It’s an assumption that I think is reasonable for a hetero person to make, not having any actual experience in the matter, but I think it changes the nature of the hypothetical substantially when you consider that, in the real world, men and women do not do the act the same way. And one’s preference for having it performed by a man substantially changes the act itself — it isn’t “nonrational.”

    But the basic point of the hypothetical is well-taken.

  16. The hypothetical sent my thoughts down a different line. If you find brothels distasteful but don’t want to appear Puritan by banning them, require them to employ XY-persons identifying as women and prevent them from disclosing the anomaly. Brothel patronage will decline sharply.

  17. I’m at (C)[2] on this, and I think it’s because of the touching that’s involved in both sex and a medical exam.

  18. (C)[2], legally speaking.

  19. Love the analogy! I’ll be the evil person who goes with a partial [5] — gender identity discrimination should generally be permissible even if sex discrimination is not.

    So-called gender identity discrimination is a crime of competing thought.

    If a male “sincerely” believes in his own mind he is a female (or a horse, or a fish), the fact remains that he is a male: why is the non-fact harbored in that male’s mind more important than the fact known to me? Should I be forced to eschew fact simply to make the person harboring the non-fact “happy”?

    Are there other instances where we consider it discriminatory to favor fiction over fact? [Other than abortion, where killing “un-quickened” sentient life is permitted whereas killing “quickened” sentient life is not, with the quoted words selected specifically.]

    1. 1. There’s actually some legit neurology about gender identity. Moreso than homosexuality, actually. So your facts are fuzzier and more cultural than biological.

      2. So long as it doesn’t pick your pocket or bloody your nose, why would you care?

      3. We use legal fictions all the time, no? And societally we reward those with the class to use fiction al arts of tact and courtesy.

      1. No the fact is this whole idea of separating sex from gender is what’s causing the problem and it all stems from a bunch of worthless social “science” researchers trying to justify their existence. You are either male, female or one of those two with a mental illness. That’s it.

        1. Your certainty-derived authority notwithstanding, neuroscience is not a social science, and it seems to disagree with you on the subject.
          I can’t post links, but google ‘gender dysphoria neurology’ or the like and you’ll get a bunch of hits. I like the quora one on the physical-psychological-neurological evidence for transsexuality. There’s also Scientific American and radiolab.

          And social science is not worthless. I wonder about economics, but sociology has some prove results. The two that sprint to mind are making evacuation orders more effective and avoiding airline crashes.

          And social science is not worthless. I wonder about economics, but sociology has some prove results. The two that sprint to mind are making evacuation orders more effective and avoiding airline crashes.

      2. I’ve been studying sex and sexuality since the mid eighties. I regret to inform you that the biology, psychology, and neurology of “gender identity” is not as strong as you seem to suggest.

        You say there is “some legit neurology”–and that can be stated as fact–but it is extremely tenuous, based on extremely small sample sizes, and includes huge overlap between the sexes, both “trans” and “cis.”

        Gender Identity is a psychological identity defined as a subjective, internal “sense,” and does not make any attempt to relate itself to biological sex (defined as chromosomal sex–XX and XY in humans). Psychologists try to tie behavior and internal senses to biology–but even in other areas outside sexuality and “gender identity,” these studies are still grasping at straws with brain scans, etc.

        From a legal perspective, changing the meaning of “sex” (which is testable, measurable, and scientifically accepted as XX and XY in biology) to “gender identity” (which is malleable, transitory, cultural, social, internal, and subjective) is only going to result in problems.

        It may even result in a total elimination of “sex discrimination,” since if I can’t actually KNOW your “gender identity,” how can I discriminate against it?

        1. The biology of gender identity plays no part in the legal analysis. SCOTUS has held that discrimination on the basis of gender stereotyping is sex discrimination, and lower courts have applied that finding to hold that discrimination against transgender people is gender stereotyping and thus sex discrimination.

          1. Thanks for the info–I think that SCOTUS interpretation is problematic–how does that get changed? Can it be changed by legislative definitions?

            I ask, since it’s odd that the ACT or “IDENTITY” of BEING “transgender” relies nearly entirely upon gender stereotypes (caps, in absence of italics…sorry). You might say that a transgender male (biological female) is basing her identity upon cultural stereotypes of what a male is in our society (speech, dress, voice intonation, etc.). The biology remains chromosomally XX–but the sex/gender stereotype is what is being shifted.

            So if a transgender male is disrupting gender stereotypes, which stereotype matters or is of value? Must I adhere to and base my behavior on traditional gender stereotypes, or the disrupted ones (defined individually, internally, one-by-one) by gender identity?

            1. Since the issue concerns statutory interpretation (e.g., Title VII of the Civil Rights Act in the case of federal law), the elected branches are free to change the law as they see fit.

              An employer is guilty of sex discrimination when a employment decision is based on whether the employee is acting feminine or masculine without regard to their biology or gender identity. For example, it is sex discrimination to refuse to hire either cisgender or transgender man because he acts masculine.

    2. You don’t have to eschew any kind of fact — you are welcome to believe your own thoughts about other’s true identities (although, others might in turn believe that your true identity is a jerk).

      But treating people people differently isn’t a thought, it’s an action. Or more to the point, if you treat all people equally to begin with, then these pesky questions never actually come up.

    3. There’s a good counter-argument here: http://slatestarcodex.com/2014…..ategories/

      (Skip to section IV if you’re in a hurry. Or don’t; it’s all worth reading.)

    4. You point out a significant problem by conflating “sex” with “gender identity,” as the Obama administration did. “Gender identity” is a subjective, internal “sense” of who a person believes they are in relation to our socio-cultural behaviors/norms. That’s why according to the Left, you have to call a transgender person by the pronoun they TELL you they are–you CAN’T know their pronoun because it’s not external or observable.

      Sex, however, is largely observable–but certainly scientifically testable by genetics–XX is female, and gives birth to the next generation of the species, and XY is male, who provides the sperm in the propagation of the species. The XY male will never get pregnant, no matter how much he acts or believes himself to be a “female.”

      Further, “gender identity” can be transitory, or purely defined on an individual basis by the individual (witness the naming of new genders, etc.).

      So, it’s impossible (according to the Left’s rules about “gender identity”) to discriminate on the basis of sex, since I can’t know what sex you are! I can’t make presumptions about you based on my sex-biases, since those biases may or may not apply to you, based on your internal “sense” about yourself–which may change any moment, without notice.

      1. Nitpick: XY people can become pregnant.

        Look up Androgen Insensitivity Syndrome.

        1. Cancel that. I did a bit more research and it seems I had misunderstood.

  20. What the prostitute self-identifies as is irrelevant for the hypothetical. It is the perception of the customer that matters. That his what s/he is paying for.

    My inclination is option 3).

  21. [3.] It extends to all situations where sex discrimination is generally allowed, for instance where the job involves seeing people naked; once we conclude that sex is a bona fide occupational qualification for a particular job, the exemption from the ban on sex discrimination should also apply to the ban on gender identity discrimination.

    Jobs which allow such discrimination usually do so because people have strong preferences regarding who may touch them or some such and we want to honor that preference. If you get to choose whether to have a male or female service provider, being able to pick a cis-male or cis-female or trans-male or trans-female makes sense.

  22. I want to hear Prof Volokh on the truly important legal question of our day :

    Are traps gay?

  23. Its extraordinary to me how many people here can’t or refuse to see the difference between freedom to do what you want and accommodation. You can imagine yourself to be whatever sex you want to yourself till the cows come home. Forcing everybody else to accommodate that belief is quite another thing. You could argue that both sides want accommodation but the purpose of a medical facility is to cater to the comfort of a patient not the self actualization of the staff. The patient has just as much a right to her opinion as the nurse has to his.

    1. Its extraordinary to me how many people here can’t or refuse to see the difference between freedom to do what you want and accommodation.

      And then two sentences later it looks like you are one of these many people…

      You could argue that both sides want accommodation but…

      Beyond your contradicting yourself, America has come down on the side of accommodation sometimes facilitating freedom like 50 years ago.

      1. Uhhhh, in the first sentence I’m drawing the line between letting a transexual believe what they want and him forcing his beliefs on others . In the second I’m comparing the behavior of the two parties. Thats not a contradiction.

        >>>>>>>>>>>>>>>>>>
        America has come down on the side of accommodation sometimes urself, facilitating freedom like 50 years ago.
        >>>>>>>>>>>>>>>>.

        The problem with accommodation is the line has to be drawn somewhere. But when we get to the point where we’re moving heaven and earth to force everybody to believe that a man can click his ruby slippers three times and become a woman its getting to the point where that line drawing doesn’t seem like it will ever happen. So are gay conversion clinics and apocalyptic Christian cults going to taste some of that generosity in playing along with their beliefs you seem to be feeling or is it just the groups you like?

  24. Remember that the whole thing started with the restroom question. And we’ve pretty much come down on the side of saying that a woman is not permitted to object to the presence of a biologically male person in the women’s restroom.

    The privacy interest in not wanting someone with the wrong genitals in your restroom is pretty similar to the privacy interest in not wanting someone with the wrong genitals giving you a medical exam or serving as a prostitute. If you’re going to say that the people in the latter two cases have the right to exclude a tranbs person, how can you make a principled distinction between that and the restroom case?

    1. Biologically male is the key here. Because if you go by perception, it’s a whole different story. And, thanks to stall technology, we don’t go by the genitals, we go by perception.

      A lot of transgenders look like their perceived gender (i.e. transgender males have facial hair, etc.) the weird thing would be forcing them into their ‘biological’ restroom.

      1. I don’t think that helps. The woman in the nurse example (that inspired this prostitute example) perceived the nurse as male and didn’t look at the nurse’s genitals. So while it’s true that we really go by perception in restrooms, we also go by perception here–the cases are still parallel. Invoking privacy grounds to keep someone of the wrong perceived sex out of a restroom is not permitted. If that’s not permitted, how can you give a principled reason based on privacy to permit it here?

        1. I can’t. In fact, I would find it sort of weird for someone to be concerned about their nurse’s genitals. Not necessarily weird to the point we should legislate about it, but outside of the mainstream of behavior.

          The prostitution example doesn’t fly, of course, because for the most part the genitals are the whole point.

        2. I agree the restroom and nurse cases are parallel and thus think it is OK to keep someone who physically (without regard to genitals) appears to be a man out of the women’s restroom. But, it is not OK to keep a transgender woman who physically appears (without regard to genitals) to be a woman out of the women’s restroom.

          In contrast, genitals make a difference in the prostitute case. Thus it is OK to discriminate in this limited circumstance against a transgender woman who physically appears to be a woman with the exception of having a penis.

      2. The weird thing is when that guy who wants to look like a woman (but doesn’t–sorry–he really, really doesn’t) uses the women’s restroom.

        I don’t think there’s any real risk there, except perhaps a breach of privacy for the women in that restroom–but it’s weird, no doubt about it.

        If you can pass, go ahead and use whatever bathroom you want. If you have replaced your plumbing technologically, go ahead and shower in the women’s locker room with me as someone who looks like me and my daughters.

        Anything less–that’s weird, and risks also making ME uncomfortable. And I have science and testable biology on my side.

        1. Without crawling into the stall with them, exactly how does a transwoman breach their privacy in a women’s restroom?

  25. Looks like open season, among other things it appears that 40 year old men may have a Constitutional right to follow any little girl of their choice into any and all toilets and that medical care providers may have a Constitutional right to intimate contact with any and all patients.

    It seems to me the larger problem is not Obamas toilet plan, lack of common sense, deluded liberals, or irresponsible politicians and their clueless media supporters. It is misguided progressive judges who are letting political allegiance to the left overcome their oath to uphold the Constitution.

    Wonder if they have any small grandchildren?

    1. it appears that 40 year old men may have a Constitutional right to follow any little girl of their choice into any and all toilets and that medical care providers may have a Constitutional right to intimate contact with any and all patients.

      Hows about you wait until this threat is realized beyond your imagination before you start with the fainting couch.

      1. Seems to me the cause of some here would be better served by making fewer personal attacks arising out of opinions reached by assigning credibility to progressive judges and the Washington Post propaganda pump. .

        1. It’s not personal, it’s based on your comment.

          Though your point about tone is well taken – it was a bit…pointed.

          I only plead that the objection about little girls being stalked in the bathroom is an old pet peeve of mine. It’s a subset of ‘think of the children’ concernmongering and has thus far not materialized as a legitimate thing that’s occurring.

          Now, in this very thread I used speculation about how allowing discrimination could result in a cartel shutting out some subgroup. But that’s not quite the same as specifying 40-year-old men and calling it ‘Obama’s toilet plan.’

          1. Those acquainted with the history of Western Civilization might agree that the deterioration of Judeo – Christian moral restraints may be the single greatest threat to Western Culture. That many of the comments here are ostensibly meant to be serious is possibly yet another symptom of an impending decline . . . which is not apt to end well

            1. So you’ve moved from harping on a speculative parade of horribles to waxing apocalyptic about America’s morality due to some areas legislating against shunning trangenders.

              While I agree that the viability of social legislation is currently on downcycle, this is a tricky argument because doomsaying about morality has a long cross-cultural tradition of never being correct until it suddenly is.

              I myself love me some Western Civilization. Individuality, markets, rationality, scientific method, heck yeah.
              But you went from there to Judeo-Christianity and Western Culture. I often find both of those to be more in the eyes of the beholder. And the beholder usually wants to use the government to legislate some pretty restrictive stuff. Starting, these days, with a lot of removal of undesirable subgroups.
              You haven’t specified that, but it’s a bit of a red flag.

              1. The mere fact that some here seem to regard the subject matter of Volokh’s post as presenting a matter for serious debate does not bode well for the future of this country.

                1. Eh, we all have our indicia of doom.

                  Mine is that Jersey Shore show being a hit.

                2. We managed to get past integration of schools, decriminalization of homosexuality, removal of prayer from public schools, enabling women to vote, repeal of Prohibition, the demise of miscegenation laws, the end of poll taxes and ballot-protecting literacy tests, the acceptance of evolution, and the emergence of modern country music.

                  I think we’re tougher and better than WJack understands.

      2. That threat has, in fact, NOT been realized. If it had been, we would have been deluged with cases in the right wing press. To some extent, the threat has always existed. This is one of the reasons women go to the loo in packs. The other is to allow them to talk about us. 🙂

        There is an issue with the converse, though. A M-F transgendered, or in some people’s opinion, a man in drag, can be in considerable danger in the Men’s Room.

        I think the “men in the Ladies Room” issue is much more emotional and cultural than factual. When we camped in Belgium, the urinals were on the outside of the latrine blocks, in one case adjacent to the sink where my wife was washing our dishes. {SHRUG} The Belgians don’t seem to mind.

        The issue of genital contact is quite distinct, however. It is about as intimate a procedure as you can have while conscious. There is a heavy social and psychological component to the genitals, linking them to sexual intercourse. Some groups, such as the Moslems, turn separation of the sexes into an absolute fetish. I think the consumer’s rights have a lot of weight in this area. Also in brothels, as I believe you pointed out above.

    2. Restated, I think what you’re saying is that we’re allowing what could reasonably be called a delusion (I am no the sex that I appear to all others to be) to supplant what we know to be true (propogation of the species relies on two distinct sexes, XX and XY, chromosomally).

      Many of our cultural and societal rules and distinctions are based on the well-known biological (and other) distinctions between men and women–for which there is much overlap.

      Progressives further blurring the line between actual sex (male and female) to “whatever I say I am, male, female, and any other made-up gender” makes any and all sex distinctions irrelevant. But that’s absurd, and most people understand that absurdity. The Left is so busy worrying about making people “feel good” that they ignore the absurdity.

  26. The legal problem you pose exposes the folly of replacing observable, testable, genetic/biological “sex” with a subjective, internal “sense” of “gender identity.”

    The sex act is fundamentally one of procreation. Procreation is a biological act which depends on biological sex differentiation–not on what someone thinks they are, or wants to be. That’s one reason why sex distinctions in law are made–because there is risk of pregnancy and long-term effects (pregnancy & a child) upon the sexual partners when they interact in a sexual way–as well as laws for privacy, since our society requires that children not be exposed to sex organs of the opposite sex outside of the family.

    A “transgender female” who is biologically and genetically XY, a male, does not have ovaries, and cannot become pregnant. No amount of “gender identity” will make him a female, change his chromosomes to XX, or get him pregnant. He may dress, act, and speak in ways that make him attractive to hetero males–and technology might give him orifices and features that mimic relations with a true female.

    We’ve always had tom-boys and effeminate males–but we’ve never decided that that MAKES them a male or female. It’s obvious that it doesn’t.

    By conflating “sex” with “gender identity,” the law risks being dependent on a subjective, internal “sense” rather than something objectively measurable.

    1. Humans, though, have this sentience technology that makes our relationships more complicated than just survival-procreation.

      Laws, being a product of society, come already mired in subjectivity. ‘A subjective test’ is not an uncommon thing in the law. Intent, attempt, these are all about subjective evaluations by the finder of fact.

  27. If a law can make a Christian baker create a man man wedding cake then the trend must be whatever the customer wants.

  28. It seems to me pretty clear that the answer is (C) — that while human sexual reactions may not be rational, they are legitimate features of people’s preferences that merit accommodating, even in a regime that generally bans sex discrimination and that requires businesses to treat most employees based on their self-identification.

    I once knew a very highly educated woman from India who was a Hindu. In her experience, Muslims were dirty, slovenly, lazy, stupid, untrustworthy people. It was quite startling to listen to, and no doubt was based on her experience in India. The idea behind the anti-discrimination laws seems to be that her perception is declared as incorrect, and as a consequence she must bear the discomfort of associating with Muslims. Though the result may not change her perceptions it will relieve the hardship on the group discriminated against and it will disrupt the transmission of such prejudices to future generations.

    In what way can we say that sexual preferences deserve a special carve out? Are they felt more viscerally than this woman’s feelings about Muslims? Are they not shaped by convention and culture just like other prejudices? We can say that for most people there is an innate heterosexual preference, but can we say that there is an innate sexual preference for a certain race, for example? What really justifies an exception for a racial or other preference not deemed innate, in the sphere we are discussing?

  29. We know for sure that Eugene Volokh does not want to be a judge.

  30. As a long-time VC commenter, I used prostitution some years ago as an example of how the boundary between “private” and “public/commercial” activities is not as sharp or easily discernible as is often believed. It has rather porous boundaries, as this, Professor Volokh’s gynecological procedure example, and many other examples can illustrate. The fact that the boundary shifts with cultural and ideological views and subjective considerations make it even more difficult.

    And as I’ve been noting for years, when the courts declare people with supposedly private preference constitutionally protected legal victims, while people with supposedly public or commercial preferences are declared constitutionally outlawed legal perpetrators, it can be extremely hard to tell who is a victim and a perpetrator in any given case. Ultimately it seems to depend on the cultural and ideological predispositions of whoever happens to be the Supreme Court majority of the time, and we have no real way of predicting what these might be.

  31. (Cont.)

    Justice Sonya Sotomeier famously said that her basis for deciding these matters was wisdom and experience. I think the ultimate difficulty with that position is that Asa Earl Carter, who had a rather different view of which preferences to protect and to outlaw, also based his views on wisdom and experience, and was also accepted by the public (as Forrest Carter) as wisdom-and-experience kind of guy. Is it simply that Sonia Sottoneyer got on the Supreme Court, and Asa Earl Carter didn’t, that the Constitution reflects her taste in preferences and not Mr. Carter’s?

    For the white supremacy movement in this country – a history we need to think about carefully these days – is the one who invented the politics of victimhood. And a vulnerability of both that legacy and our current jurisprudence of fiat victimhood is that if white supremacists get on the court, they won’t need to overrule any structural precedents, or even change the rhetoric, to simply replace the current majority’s fiat victims with their own.

    In a Republican form of government, that decisions based on wisdom and experience get entrusted to legislatures, who reflect the collective wisdom and experience of the people electing them. The Courts are limited to enforcing positive law that the people already agreed to. This limits the Courts’ ability to right wrongs as Justices personally see them. But it also protects the People should the Justices, or the people appointing them, become corrupt.

  32. Saya ingin mendengar Prof Volokh tentang pertanyaan hukum yang benar-benar penting di zaman kita:

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