Freedom of Religion

District Court Allows Challenge to School’s Locker-Room-of-Your-Choice Policy

The court held that plaintiffs' sexual harassment claims (under Title IX) and religious objection claims (under the Illinois RFRA and under the Free Exercise Clause) could go forward, at least for now.

|The Volokh Conspiracy |

In Friday's decision in Students and Parents for Privacy v. School Directors (N.D. Ill.), U.S. District Judge Jorge Alonso refused to dismiss plaintiffs' challenge to a school district's policy "allowing transgender students to use the bathrooms and locker rooms of their choice"; this means that, in his view, the plaintiffs' claims might be legally valid if the facts are as they allege.

[1.] The court allowed plaintiffs' Title IX sexual harassment claim to go forward; it didn't discuss the claim in detail, but here's the plaintiffs' argument from their opposition to the motion to dismiss:

Importantly, "[t]o be actionable as sexual harassment, the unwelcome treatment need not be based on unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature." Passananti v. Cook Cty., 689 F.3d 655, 664 (7th Cir. 2012) (internal citation omitted).

It is well-settled that opposite-sex intrusion into single-sex privacy facilities is sexually harassing. This Court held so in Norwood, 590 F. Supp. at 1417, saying that opposite-sex restroom attendants violate privacy and cause embarrassment and stress. Similarly, the Second Circuit affirmed a ruling that a company created a hostile environment by allowing males to clean the women's locker room while female employees were changing clothes. Lewis v. Triborough Bridge & Tunnel Auth., 31 F. App'x 746 (2d Cir. 2002).

The Washington Appeals Court held that an employer created a hostile environment partly because he entered the women's restroom while an employee was using the toilet. Schonauer v. DCR Entm't, Inc., 905 P.2d 392, 401 (Wash. Ct. App. 1995). Notably, he never observed her unclothed: she testified that she was securely in a stall. Id. at 396. Still, the employer's intrusion "intensified" "the hostile and offensive nature of that environment." Id. at 401. Similarly, a female entering the men's locker room "on five to ten occasions" created a hostile environment, resulting in sexual harassment. Washington v. White, 231 F. Supp. 2d 71, 80 (D.D.C. 2002).

The Norwood court noted that even if an opposite-sex maintenance worker were to knock before entering an in-use restroom, the users still might be stressed. 590 F. Supp. at 1422. In the instant case, Defendants refuse even that courtesy to the students. Am. Compl. 47-48 ¶ 227, ECF No. 197 (District refuses to warn about granting opposite sex access generally, or upon actual entry to a privacy facility.). Norwood also shows that the opposite-sex person's state of mind when entering a single-sex facility is irrelevant to the potential privacy violation—the maintenance workers would be in the facility to focus on their job. Thus, contra the District's argument, Dist. Memo 11, ECF No. 203, Plaintiffs need not demonstrate that either the District or the transgender students were motivated by animus when opposite-sex access was demanded and authorized.

[2.] The court also allowed plaintiffs' claim under the Illinois Religious Freedom Restoration Act to go forward; the Illinois RFRA generally creates a presumptive right to religious exemptions from generally applicable laws, and is patterned after the federal RFRA. The court did not decide whether the government could overcome the RFRA claim by showing that its policy was narrowly tailored to a compelling government interest; nor did the court discuss how the plaintiffs' claim might differ from a traditional RFRA claim, where people seek an exemption from a policy rather than trying to invalidate the policy:

The IRFRA defines "exercise of religion" as "an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of belief." 775 ILCS 35/5; cf. Korte v. Sebellius, 735 F.3d 654, 683 (7th Cir. 2013) ("[T]he substantial burden inquiry does not invite the court to determine the centrality of the religious practice to the adherent's faith; RFRA is explicit about that. And free-exercise doctrine makes it clear that the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations."). It is enough that plaintiffs allege SPP Parents and SPP Students have sincere religious beliefs that they should not undress or use the bathroom in front of members of the opposite sex and that SPP Parents have a sincere religious belief that they should teach such modesty to their children.

Defendants also argue that SPP fails to allege adequately a substantial burden to their exercise of religion. For purposes of the IRFRA (like the federal Religious Freedom Restoration Act ("RFRA") before it), "the hallmark of a substantial burden on one's free exercise of religion is the presentation of a coercive choice of either abandoning one's religious convictions or complying with the government regulation." Diggs v. Snyder, 333 Ill.App.3d 189, 194-95 (5th Dist. 2002) (citing Wisconsin v. Yoder, 406 U.S. 205 (1972))…. Plaintiffs have alleged that District 211 maintains a policy allowing male students with female genders to use the girls' locker rooms and restrooms and female students with male genders to use the boys' locker rooms and restrooms. Thus, SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs….

Plaintiffs have [also] alleged that District 211 requires students to take physical education, which, often, requires students to change and/or shower between classes. In addition, plaintiffs have alleged that District 211 requires students to take swim class and that the swim locker rooms do not have private changing stalls or private showers.

Plaintiffs also allege that District 211 has conveyed to students that if a person objects to the [restroom and locker room use] policy, the person is bigoted and intolerant. That, combined with actual heckling by students, has dissuaded some SPP Students from asking to use a private locker room.

Furthermore, some SPP Parents have had their requests that their children be allowed to use a private locker room denied. Although the Court is not deciding today whether SPP can prevail on this claim, the Court concludes that SPP has included sufficient facts to provide notice to District 211 of a plausible claim under the IRFRA. Cf. Stanley v. Carrier Mills-Stonefront School Dist. No. 2, 459 F. Supp.2d 766, 773 (S.D. Ill. Sept. 21, 2006) (holding parent challenging school's "opposite sex day" stated free exercise claim and noting "peer pressure accompanied by tacit approval from the administration could certainly amount to coercion")….

[3.] The court also allowed plaintiffs' Free Exercise Clause to go forward, on the theory that, though the policy was facially religiously neutral,

[P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the … policy is a bigot or intolerant. That sounds like the sort of "subtle departure" from neutrality that might support a claim under the Free Exercise Clause.

[4.] And the court rejected plaintiffs' claim that they had a substantive due process right not to be observed by members of the opposite sex.

So far, the right not to be seen unclothed by the opposite sex [has not been recognized as constitutionally protected]. By bodily integrity, the Supreme Court was talking about physical bodily integrity, not visual bodily privacy. Rochin v. California, 342 U.S. 165, 172 (1952) (a "struggle to open [plaintiff's] mouth and remove what was there" as well as "the forcible extraction of his stomach's contents" constituted a violation of his substantive due process rights).

That is why Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), does not help plaintiff. There, the plaintiff's allegation that he was strip searched "by female guards, and that no effort has been made to accommodate his privacy interests" stated a claim for violation of bodily integrity. Canedy, 16 F.3d at 188. That, though, was a "tactile" search, as the Seventh Circuit later described it when distinguishing Canedy from a visual search. Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995) (Canedy "holds that a right of privacy limits the ability of wardens to subject men to body searches by women, or the reverse. Our case involves visual rather than tactile inspections[.]").

On a number of occasions, the Supreme Court and the Seventh Circuit have discussed bodily privacy in the context of rights under other amendments. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 657 (1995) ("For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases…. Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require 'suiting up' before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.") (holding that mandatory urine-testing for drugs did not violate the Fourth Amendment); Johnson, 69 F.3d at 148 & 150 ("How odd it would be to find in the eighth amendment a right not to be seen by the other sex. Physicians and nurses of one sex routinely examine the other. In exotic places such as California people regularly sit in saunas and hot tubs with unclothed strangers.") (Holding "[t]he fourth amendment does not protect privacy interests within prisons. Moving to other amendments does not change the outcome."); Id. at 152 ("The nudity taboo retains great strength in the United States…. Ours is a morally diverse populace and the nudity taboo is not of uniform strength across it. It is strongest among professing Christians, because of the historical antipathy of the Church to nudity … The taboo is particularly strong when the stranger belongs to the opposite sex.") (Posner, J., concurring); Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1321 & 1323 (7th Cir. 1993) ("no one would seriously dispute that a nude search of a child is traumatic") (holding strip search of high school student was not unreasonable search); Schaill v. Tippecanoe Cty. School Corp., 864 F.2d 1309, 1312 & 1313 (7th Cir. 1988) ("There can be little doubt that a person engaging in the act of urination possesses a reasonable expectation of privacy as to that act, and as to the urine which is excreted. In our society, it is expected that urination be performed in private, that urine be disposed of in private and that the act, if mentioned at all, be described in euphemistic terms.") (holding that urine drug test constitutes search).

While these cases recognize some level of societal appreciation for adult privacy (though less so for students) in urination and in being naked in front of the opposite sex, none of these cases compels a conclusion that the right SPP asserts in this case is within the bounds of substantive due process; nor do they synthesize to support a substantive due process right. In any case, this Court takes seriously the cautions of the superior courts not to expand substantive due process. Glucksberg, 521 U.S. at 720 ("[W]e 'have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.'").

Although it would not shock the Court if the Seventh Circuit or Supreme Court one day recognizes the right to bodily privacy that the plaintiff seeks to enforce, this Court is not at liberty to expand the substantive rights protected by the Due Process Clause.

[Footnote moved: Indeed, the Third Circuit has recognized such a right. Doe v. Boyertown Area School Dist., 897 F.3d 518, 527 n. 53 (3rd Cir. 2018) ("If there were any doubt after Doe v. Luzerne County that the constitution recognizes a right to privacy in a person's unclothed or partially clothed body, we hold today that such a right exists."), petition for cert. filed Nov. 21, 2018. The Third Circuit went on to hold that a school district's policy of allowing transgender students access to opposite-sex bathrooms and locker rooms "'served a compelling state interest in not discriminating against transgender students' and was narrowly tailored to that interest."]

[5.] And a reminder about the procedural posture of the decision: "As lawyers understand, on a motion to dismiss, a Court accepts alleged facts as true. That does not mean the facts are true; that does not mean a plaintiff will ultimately be able to prove the facts. Many a plaintiff has failed to prove, at a subsequent stage of litigation, the facts alleged in a complaint."

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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110 responses to “District Court Allows Challenge to School’s Locker-Room-of-Your-Choice Policy

  1. Put simply, the court can’t really avoid the fact that sexual harassment is NOT based on the intent of the perpetrator, but on the perception by the victim. It can be sexual harassment, even if its not intentional.

    1. Then it appears (especially after reading this post) that the expansion of what constitutes sexual harassment to an ever larger array of actions by HR departments and courts over the years has created a precedent for opponents of letting boys use the girls locker room (or vice versa).

      1. Possibly, but the rules for Title IX harassment are different if it is student on student versus teacher on student harassment. See, e.g., Hill 797 F.3d 948. Unless I’m reading something wrong, the alleged harassment is a policy that permits students to harass each other (by being in the same bathroom). Probably not a 12(b)(6) issue, but I think it’s harder to prove for the plaintiff.

        1. IANAL and so have this question: if it is school policy that fosters the student-on-student “harassment,” — via rules that allow or encourage invasion of sexual privacy/modesty — isn’t the school itself the proper target of the suit?

        2. I would think it would be easier to prove. The school district is actively promoting a policy that subjects students to sexual harrassment.

  2. This could be a great case for dueling religious claims, each side insisting it sincerely believes its preferred result to be the will of a god. Some gods are libertines, others prudes. Some gods are intolerant, others tolerant. Some gods emphasize love, or celebration of the body, others hate, or shame. Some gods want coed swim classes, others can’t handle that.

    1. There also may be a legal angle here for a claimant who sincerely believes his or her gender in the eyes of God trumps any gender assignment by lesser beings, such as gym teachers, school administrators, or prudish parents. ‘I must use this locker room lest I betray the divine order,’ could be a real winner under expanding views of superstition-based privilege.

      1. Let us know when you find someone with such a sincerely-held belief.

        1. You seem unfamiliar with the point that people regularly assert remarkable — often downright silly — “sincerely held” religious beliefs. ‘The moon is made of green cheese’ and ‘storks deliver babies’ fit easily with some of them.

          1. Oh, I’m familiar with the claims. I’m also very familiar with the evaluations of whether those beliefs are sincerely held. Hint – in almost all those situations, they are not.

            1. You figure courts reject claims by people who claim to believe in miracles; magic underwear; transubstantiation; a 6,000-year-old Earth; a divine ban on cheeseburgers, pork chops, or lobster bisque; evolution as a hoax from hell; the 72-virgin deal; a man rising from the dead; and the like?

              I see courts swallowing that stuff regularly.

              1. I would advise plaintiffs’ counsel not to rely on your testimony to establish the objective sincerity of any religious belief.

              2. How courts evaluate whether a belief is sincerely held has nothing to do with the rationality of the belief.

                But you know that. I really don’t know why I keep feeding the troll.

            2. Why would a religious belief that men should not shower with women be anymore believable than a religious belief that men should be allowed to shower with women? Courts can’t resolve those sorts of questions, which is why they generally stay out of it.

              1. Because Jesus?

              2. A belief that men should be allowed to shower with women is about as sincere as a religious belief in cockfighting. Even if it were, and even if the separate facilities were a substantial burden, there is more than sufficient neutral compelling basis to justify separate locker rooms.

                1. Do you contend the rattlesnake-jugglers are not sincere?

                  Some of them have died for their faith.

                  Or gullibility. Or stupidity.

                  1. Like I said earlier, I would advise plaintiffs not to rely on your testimony to establish the sincerity of any religious belief, or to establish, well, anything else.

                2. Why don’t you just answer my question? Why is a religious belief in cockfighting less sincere than a religious belief that men and women should not shower together?

                  I’m asking only about sincerity, not whether an interference with the belief is lawful under an RFRA analysis. But your analysis is also wrong since it leaves out the second prong of the test.

                  You should also know that it is the law that the courts don’t ask about sincerity when examining substantial burden. It is ordinarily enough that the person asserts the sincerely held religious belief.

                  1. Uh, not sure I quite understand your points, are you contending that courts cannot determine sincerity? In your hypothetical, I think a court would have no difficulty finding that the defendant was insincere and not credible.

          2. You seem to ignore your own regularly asserted, remarkable, often downright silly, “sincerely held” belief against basic medical science and anatomy.

    2. Congrads Rev… Your viewpoints have a tangent to this case. Specifically…

      “The court also allowed plaintiffs’ Free Exercise Clause to go forward, on the theory that, though the policy was facially religiously neutral,

      [P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the … policy is a bigot or intolerant. That sounds like the sort of “subtle departure” from neutrality that might support a claim under the Free Exercise Clause.”

      1. It sounds like the district was using RAK (Royal Arse Kisser) as a consultant.

    3. interesting that I see no mention of religious faith being involved in this case, But the Rev. trots it out yet again, like a one-trick pony.

      1. Apparently you didn’t bother to read the article.

        The court also allowed plaintiffs’ claim under the Illinois Religious Freedom Restoration Act to go forward

    4. I appreciate that you’re trying to be offensive, but you stumble across a good point. Almost all “culture war” cases nowadays involve a conflict of rights.

      The courts really need to develop a doctrine about how to resolve these conflicts. Enumerated rights > penumbra rights > statutory rights? Or maybe based on the greater “harm” e.g., life/liberty > economic damages > dignitary damages?

  3. So this is all based on risk? Nothing actually has happened yet to offend the sensibilities other than the risk their sensibilities may be offended?

    1. According to the opinion, “At some point after District 211 first allowed Student A to use the girls’ restrooms but
      before it allowed her to use the girls’ locker rooms [and before this specific policy was implemented], Student A used a girls’ locker room anyway. A female student (who is not a plaintiff but who had been sexually assaulted previously) was exposed to Student A’s penis. District 211 failed to investigate or remediate the situation. Instead, by December 2015, District 211 allowed Student A to access the girls’ locker rooms.

      “At first, the policy applied only to Student A, who was required to change in private changing stations while in the girls’ locker rooms. On one or more occasions, Student A failed to use a private changing station while changing. The reason District 211 allowed Student A to use the girls’ locker rooms is because it was used by females. Had the girls’ locker rooms not been limited to females, District 211 would not have been able to affirm Student A’s gender by allowing her also to use the girls’ locker rooms.

      “After District 211 allowed Student A to use the girls’ locker rooms, an SPP Parent requested that her daughter be allowed to use a private locker room. The district refused.”

      1. Ah, OK. My injury in fact senses were tingling.

        1. Picard, in tears, to the arrogant man with an army and police behind him: THERE ARE 4 LIGHTS!

          And he walks away with his rescuers.

          1. I mean that’s a great bottle episode of Trek, but dunno where your analogy sits.

            Here’s what I was going off of: Thus, SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs….

            1. The sincerely held religious beliefs of (IIRC) Muslims and (ISTR) some sects of Judaism consider exposure to same-sex individuals when undressed to be a violation. I welcome correction if I err.

              If so, then locker rooms should be renovated enough that unwanted bits-seeing would stop being a concern. That would minimize any discomfort others felt from having a transgender person in the facility corresponding to his or her internal identity.

            2. The interesting issue — to me — is that this is framed as a first amendment religion issue. Why? Because it has power and all those RFRA laws and precedent behind it.

              But there is the more general claim that I /imagine/ is not used because it doesn’t have the same legal protection (as usual IANAL). Among the cultural norms and taboos of the United States, it is forbidden (outside of exceptional circumstances) to force nakedness or force exposure to opposite-sex nakedness. There are various laws against it. Violation of the norm causes embarrassment, humiliation, mortification.

              Indeed, total institutions commonly use forced nakedness to assert power over inmates, and totalitarian systems rely on forced nakedness as part of torture and indoctrination regimes.

              But in this case one must assert a “sincerely held religious belief” in order to have even a chance of prevailing against a school that forces nakedness (via refusing access to a private changing room or restroom, when people who are morphologically of the opposite sex are allowed into other-sex dressing rooms and restrooms).

  4. Shrug. In 1940, a court in Staten Island held that there was an implied requirement in New York law that the City University of New York could only hire professors who were of sound moral character, and that Bertrand Russell (being a pacifist and an atheist), was not of sound moral character, and could therefore not be a professor of philosophy at the City University.

    1. Now he’d fail for being unspeakably male and white. What goes around….

      I seem to recall he was quite keen on logic too, so pretty much full patriarch material.

        1. CNN is more about “do as I say, not as I do”!

  5. “So far, the right not to be seen unclothed by the opposite sex [has not been recognized as constitutionally protected]. By bodily integrity, the Supreme Court was talking about physical bodily integrity, not visual bodily privacy. Rochin v. California, 342 U.S. 165, 172 (1952) (a “struggle to open [plaintiff’s] mouth and remove what was there” as well as “the forcible extraction of his stomach’s contents” constituted a violation of his substantive due process rights).”

    So hiding a camera in the girl’s locker room over at the high school is ok? Asking for a friend,.

    1. I mean, it’s not a Constitutional issue…

    2. Well, if there’s a right to be seen unclothed by the opposite sex, then there must also be a right NOT to be seen unclothed by the opposite sex. So if the right to change in a single-sex locker room goes away, the rights of strippers and porn starlets to “bare all” vanish with it.

      1. The mind marvels at that train of thought. Is there some special school that you attended where they taught you to string such sentences together?

    3. “So far, the right not to be seen unclothed by the opposite sex [has not been recognized as constitutionally protected]”

      It may not be “constitutionally” protected, but it is in a /host/ of situations protected by law, regulation, and practice, along with laws that forbid public /displays/ of unclothed bodies. But in the case of trans people, all that goes out the window, even, apparently, in the case of people who are clearly, morphologically other-sexed.

  6. All of there theories would apply similarly to just having a single locker room that is sex/gender neutral. They are for all intents and purposes arguing that separate locker rooms for boys/men and girls/women are legally mandated. I don’t see that as a plausible reading reading of the laws in question.

    1. There is also the fact they are mandating how the state may choose to define gender. To be sure the other side in cases where a state limits it is arguing for that to just in the opposite direction. But if you believe the latter is up to the state then so is the former.

      1. That really is the unanswered question here. Are Trans boys and Trans girls treated as boys/girls, or as girls/boys.

        If they are treated as members of their preferred gender, then there simply aren’t any boys in the girls locker room under this policy. If they are treated based on assigned sex at birth, there are.

        1. Right. And the predicate question is who get’s to decide.

          Still even beyond that my first post stands. Even if we accept that this is opposite sex in the locker room with the states permission, the arguments in essence require separate locker rooms for the sexes. Because from those arguments, I don’t see a sex neutral locker room as being legally viable.

          1. “And the predicate question is who get’s to decide.”

            Yes. In the distant pas (3-4 years ago) what schools did was to treat trans kids as people with disabilities who needed reasonable accommodations. In all cases the schools freely provided restrooms and changing rooms, often staff ones, and in all relevant cases those offers were rejected. The schools then simply caved or were hit with court orders.

            In this particular case, the school provided a private (cordoned off?) changing room /within/ the girls’ changing room, but the trans kid refused to use it and the school caved again. The only time it /didn’t/ cave was when the cis-girl afterwards asked to use a private changing room and the school refused.

        2. Well, there’s an easy way around this. It’s not a boys room or girls room anymore. It’s a “Penis-locker room” and “No-penis locker room” (Or a Vagina locker room, and no Vagina locker room)”.

          1. It’s ironic the left enjoys control of speech in scholastic situations well beyond mean repeated harrassment because the wrong words can leave a fragile woman about to collapse with a case of the vapors, but a little girl seeing a penis, the classic cause of a case of the vapors, is declared meaningless, you bigots, you.

            1. a little girl seeing a penis, the classic cause of a case of the vapors,

              I always thought it was corsets.

              1. Depends on the penis.

        3. Well, the op makes a distinction between sex and gender:

          “Plaintiffs have alleged that District 211 maintains a policy allowing male students with female genders to use the girls’ locker rooms and restrooms and female students with male genders to use the boys’ locker rooms and restrooms. Thus, SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs. “

      2. I didn’t spot the plaintiffs mentioning gender at all.Their complaint seems to be about sex.

    2. In my home state of Texas seperate restrooms are very often legally mandated even in private businesses. At least a few years ago even an additional special unisex wheelchair accessible restroom was regularly viewed with suspicion by code enforcement.

  7. Point taken but even religious faith has limits. By way of extreme example: A god who mass-murdered innocent children for political ends, and then bragged about it, could attract no long-term following in the modern era.

    Er, wait a minute…

    1. A god who mass-murdered innocent children

      Those children belonged to the oppressor class. They would have lived if their parents were on the right side of history.

      1. They would also have lived if the god believed it wrong to mass murder innocent children.

        1. The god demanding the murder of innocent children appears to be a Democrat these days.

      2. “Those children belonged to the oppressor class.”

        No, God did not limit it to the oppressor class. In Exodus 11:4-6 he commanded the death of “Every firstborn in Egypt . . . from the firstborn son of Pharaoh, who sits on the throne, to the firstborn of the slave girl, who is at her hand mill”. And the cows, too, for some fucking reason. He didn’t save the firstborn of all the slaves, just the Israelites (some of whom, like Moses, weren’t slaves at all).

        1. Not to mention that this God had no need to murder any kids. Having hardened pharaoh’s heart in the first place (god knows why), he could have simply unhardened it. Or just never have hardened it to begin with. I honestly don’t know how this fails to qualify as malevolent capricious terrorism.

  8. From a practical, as opposed to a theoretical or idealogical, standpoint, isn’t the question whether school boys get to (have to) see school girls’ breasts and vulvas, and whether school girls get to (have to) see school boys’ penises and scrota, and whether the viewees have any basis to object to being so viewed?

    Does anyone have any reliable statistics about what percentage of anatomical males (i.e., with the aforesaid equipment) identify as female, and what percenatge of anatomical females (same definition) identify as male?

    1. Total male and female 0.6%, according to a survey you can follow the Wikipedia citation to.
      https://preview.tinyurl.com/ahr6anm

      1. Thanks, A nerdy Fred. Given the small numbers involved, it seems to me that reasonable policies could be adopted to respect the dignity of the few while minimizing the offense (shock, titillation, whatever) to the many. Provision of private changing areas for those who don’t fit the binary (boys-girls) model doesn’t seem that difficult or intrusive.

        1. Unintrusive and un-difficult are not the desiderata. This is an exercise of power.

          ‘How many fingers am I holding up, Winston?’
          ‘Four.’
          ‘And if the party says that it is not four but five ? then how many?’
          ‘Four.’
          The word ended in a gasp of pain.

          1. Wow, Malvolio. So you think the whole transgender movement is a bad faith attempt to destroy truth in service of the State?!

  9. I don’t know why anyone would object to letting in a mentally ill person into their gender specific restroom….

    1. The key is you keep yelling they’re mentally ill regardless of what the actual debate is about. That’s sure to keep you super relevant. Just like it did with homosexuals before this.

      1. What am I supposed to do? Pretend cutting off genitals and pumping mentally ill people full of artificial hormones is normal?

        1. Naw, just keep compulsively posting. They key is to never engage with the legal issue on this legal blog, and just yell and yell how confident you are of your point of view.

        2. Almost all of this argument is about those who do not cut off or mutilate their genitals or use hormones. Many of the most vocally transphobic persons I know have no problem with sharing and restrooms of presented gender with post surgical transsexuals.

      2. Is ableism a mental illness? Anorexia? Both are disphormic mental illnesses. Sorry you suck at science with at useless physics undergrad you had.

        1. My point is not who is right, and more that knee-jerk insult-posting whenever a group is brought up is the tactic of losers, regardless of how sure said losers are of the accuracy of their insults.

      3. Homosexuals ARE mentally ill. No man in good mental health longs to insert his organs into another man’s rear.

  10. Some mischievous right-winger must have gotten hold of Saul Alinsky’s Rules for Radicals – make the adversary play by its own book of rules.

    Sexual harassment claims can be based on a feeling of discomfort, including apparently discomfort with having guys in the ladies rooms and ladies in the gents. Such are the precedents.

    Now let’s see how they can wriggle out of complying with their own precedents.

    1. Shortened to a common tweet nowadays: “Oh no! The Right is weaponizing our own tactics against us!”

      1. Reminder, for better or for worse, the left invented “Fake news!” as a (deserved) attack against Trump.

        1. With all of this weaponry and strategery, it must be surprising to some of you guys that conservatives have been routed by their betters in the culture war.

          1. Rev, though you might be a fine Brownshirt or Red Guard, confidently marching and screaming your way into the glorious future, you might look into the fate of these organizations and see what the powers that be do when they become embarrassed by their overzealous, low-IQ enforcers.

      2. More like a very common conservative gloat.

        Since I’ve been alive, Rules for Radicals really only comes up on the right; mostly to talk about how awesome it is to be using it. Sometimes to decry how it’s evil ’cause it’s puckishly dedicated to Satan.

        Consistency isn’t really important in this realm.

        1. That’s because the left is too busy doing it and gaslighting anyone who calls them out.

  11. How about Moms who enter the Men’s Locker Room in my YMCA looking for their boys. “I’m married, I’ve seen all you men have” is what we get as they pull their dawdling boys out. If I did that in the Women’s Locker Room for a daughter, I’d be registered as a Sexual Offender.

    1. I am old fashioned, and genuinely sexist enough to be ok with this gender distinction. Heck if an older woman or transwoman parent or guardian enters a locker room searching for their charge, they should be firmly escorted out but not otherwise harassed by authorities, while any male should be sternly warned and if they continue to do so I have no problem calling the police, even though I abhor the vast majority of sex offender punishments and find post probation inclusion on sex offender lists criminally unconstitutional

      1. “they should be firmly escorted out but not otherwise harassed by authorities, ”

        In general, bathroom rules need more nuance. There are huge differences between genuine transsexuals, pranksters, drunk college kids, and genuine predators.

        And, for this reason, the old ad-hoc system was vastly superior.

        1. In general, bathroom rules need more nuance. There are huge differences between genuine transsexuals, pranksters, drunk college kids, and genuine predators.

          Laws don’t work by “nuance”.
          Eventually, every law is enforced at that point of a gun. It isn’t reasonable for a law to be “nuanced”: each person must be able understand what is lawful and what is not, or it’s just tyranny.

    2. I’ve called mothers out for doing that and told them to leave.

      1. Sure you have, you brave boy.

        1. I don’t tolerate bullshit from whiny liberals

          1. Your eagerness to proclaim some very anodyne pissiness says otherwise.

          2. You, like every other vanquished right-winger in modern America, spend every day of your life complying with the preferences of your liberal-libertarian betters.

            Your obsequious obedience is appreciated, clingers.

    3. “How about Moms who enter the Men’s Locker Room in my YMCA looking for their boys. “I’m married, I’ve seen all you men have” is what we get as they pull their dawdling boys out.”

      A woman who does this, even to retrieve her son, is sexually harassing the men in the locker room. However, she does have a legitimate need to go in there to get her boy. So the only fair thing to do is to sexually harass her back.

  12. Or we could skip the legal mumbo jumbo, accept that there are two biological sexes, and stop trying to bend the law to fit genuine mental illness. Finding a logical fit to insanity is like finding a glove to fit your foot.

    1. A call for ‘accepting reality’ from the side of fairy tales and birtherism seems weak.

  13. My church has all-gender restrooms. It was startling the first few times to be washing my hands in the company of women but we all got used to it and it works fine.

    One thing comes to mind that’s arguably a quibble, but as a lawyer you must believe that every word counts. “Locker-room-of-your-choice” carries with it the implication that gender identity is a “choice”. Multiple lines of evidence have come to light strongly indicating that most of the time it’s innate and fixed. That’s a tangent of course from the issues in the article.

    1. Contra: clustering effect in young women.

      In summary, when a young woman changes gender, there tends to be a cluster around her that all change in close temporal proximity, and which exhibit a much higher than normal relapse rate. This suggests that at least in this class of cases gender identity is indeed a choice. Note that the higher relapse rate is not observed with the first woman?>man transition, so these are (best speculation at present) a form of copy cat responses.

  14. For perspective, I went to a talk by a trans man working to defuse tension about issues like this.

    He called for a show of hands among the women in the audience: “How many of you have ducked into the men’s room in an emergency?”

    Almost every hand went up.

    Showers and locker rooms are certainly a harder problem. Shower curtains are cheaper than litigation. There’s also the issue that some cis people are radically nonconformist in appearance. There’s a cis woman lawyer on prisontalk.com who looks so butch that she’s been harassed going into the women’s locker room at the gym.

    BTW, he may have been XX, but if you saw him you’d expect him to be the type to use the men’s room. Male-range voice, balding, the works.

    1. “a trans man working to defuse tension about issues like this”

      Ah, yes, the “good cop.” The “Jeff” in the “Mutt and Jeff” game.

      “I’m sorry about Officer Mutt, sometimes he gets aggressive and threatens people. I’m Officer Jeff, and you can talk to me. How about doing what I ask, just as a friendly gesture?”

      1. …you’re saying it’s bad faith when trans people seem nice?

        1. No one ever said they’re not nice. We said that they’re mentally ill.

          1. *You’re* saying they’re mentally ill, *I’m* saying they’re frequently eccentric, and that activists purporting (accurately or not) to act in their name have been making various demands which are wrong.

        2. No, I’m saying that when they do Mutt and Jeff tactics it’s not nice at all, any more than the friendly policeman asking you to confess isn’t actually being nice to you, either.

          1. You’re just assuming said tactic.
            Your only evidence is a story of one trans person engaging with the community, and others being activists of a different sort.

            No evidence the two talk to one another, much less concoct a good-cop-bad-cop plan.

            1. When I hear about a woman trying to defuse tensions, I presume she’s talking to both sides, but it seems from your account she was trying to work on getting the non-woke to become woker, in a context where if you don’t get woke, you could get fired – or depending on the city and country where you live, get fined or imprisoned.

              My apologies to her if she actually tried to defuse tension by talking to the woke crowd and urging them to back off their threats. But your account limited itself to her working the unwoke crowds.

              “No evidence the two talk to one another”

              Please, the Mutts and the Jeffs know *of* each other, and more to the point, the unwoke know about both. They know that the Jeffs are giving them an easy way to avoid the wrath of the Mutts.

              1. in a context where if you don’t get woke, you could get fired that context is not in evidence. (Not my account, BTW; I don’t know A nerdy Fred.)

                Someone is talking to people who are at least skeptical of their identity as a person. Such engagement and opennes should be encouraged, not met with suspicion born out of imagined agendas.

                1. Perhaps I misunderstood, I was thinking of some kind of employee seminar or whatever to get people softened up to accept whatever new policy was being peddled.

                  I cast my mind back to a “diversity training” video I once saw, where they targeted a guy who said he wasn’t racist. So first they had an angry guy yelling that he was a racist (“Mutt”), and a soft-voiced moderator (“Jeff”) who gradually guided the discussion until the target broke down in tears and “admitted” that his father beat him and turned him into a racist.

                  Your reference to defusing tensions, followed by an account of a one-sided presentation which posed challenges to one side only, also made me a tad skeptical.

                  But it’s possible the woman was simply addressing a wholly voluntary audience who weren’t required to be there as part of “training” and were genuinely curious about human differences. If so, I freely admit I got the situation wrong.

            2. When I hear about a woman trying to defuse tensions, I presume she’s talking to both sides, but it seems from your account she was trying to work on getting the non-woke to become woker, in a context where if you don’t get woke, you could get fired – or depending on the city and country where you live, get fined or imprisoned.

              My apologies to her if she actually tried to defuse tension by talking to the woke crowd and urging them to back off their threats. But your account limited itself to her working the unwoke crowds.

              “No evidence the two talk to one another”

              Please, the Mutts and the Jeffs know *of* each other, and more to the point, the unwoke know about both. They know that the Jeffs are giving them an easy way to avoid the wrath of the Mutts.

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