MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Short Circuit: A roundup of recent federal court decisions

Mo money mo problems, open-air burn pits, and the case of the missing tattoos.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Big news! This week, the U.S. Supreme Court granted cert in Timbs v. Indiana, which will give the Court occasion to consider whether the Eighth Amendment's protections against excessive fines apply to the states. The Indiana Supreme Court said they didn't and permitted the civil forfeiture of a $40,000 truck (obtained licitly) over $225 worth of illegal drugs. Nick Sibilla has the story. For IJ's cert petition, click here.

  • Waikiki, Hawaii hotel workers decline to join union; the union demands they pay full dues anyway, starts process to garnish their wages. Does the union's conduct amount to an unfair labor practice? NLRB: No, the union made an honest mistake. D.C. Circuit: That "makes no sense." The union never apologized or said it made a mistake. Its message to the workers was, "We can do this the easy way, or we can do this the hard way."
  • Verizon employee leaves work early, prompting months long investigation, during which employees offered conflicting accounts of whether the employee's departure was authorized. NLRB: All of which was a pretext to fire a union-supporting employee. D.C. Circuit: Nope. Companies can fire employees for being dishonest, and that's all that happened here.
  • A federal judge failed to adequately consider a sex offender's "nightmarish" childhood when sentencing him to 25 years in prison for taking illicit photos, says two-thirds of a Second Circuit panel. Remanded a second time, this time to a new judge.
  • Allegation: In 2008, NYPD officers and a state prosecutor obtain arrest warrant to bring material witness before a judge. Yikes! They detain the witness for two days and do not bring her before a judge. Second Circuit (2013): The officers and prosecutor are not entitled to absolute immunity. Second Circuit (2018): Nor are they entitled to qualified immunity. There's not a lot of case law on abusive detentions of material witnesses, but this is the rare case where no case on point is necessary; the officers and the prosecutor knew to abide by the terms of the warrant. The witness can sue.
  • The presence of transgender students in restrooms and locker rooms at Boyertown, Penn. high school does not violate the constitutional, statutory rights of students who are not transgender, says the Third Circuit. Although plaintiffs have fasted and reduced water intake, their difficulties are not comparable to the harm of forcing transgender students to use facilities that do not match their gender identity. Students who are concerned about their privacy can take advantage of the school's single-occupant facilities for using the restroom, showering, and changing clothes.
  • Plaintiffs' counsel dismisses lawsuit alleging that a manufacturer's fire sirens caused hearing damage after discovery reveals that all of the plaintiffs are time barred (oops!) and one of them didn't suffer any damage from the sirens in the first place (double oops!). Third Circuit: Counsel's lackadaisical approach to factual investigation before filing this lawsuit (which is one of more than 1,000 they have filed since 2011) warrants an award of attorneys' fees.
  • Honduran and Salvadoran mothers fear violence, cross into U.S. with their young children, are denied asylum. Mothers and children: The way the gov't conducted our "credible fear" interviews is unlawful, unconstitutional. Third Circuit (2016): There's a federal statute that bars us from considering your claims, and you can't argue the statute is unconstitutional. Four children: The feds have since afforded us "special immigrant juvenile" status for abused or abandoned children (and yet are still trying to deport us expeditiously). Third Circuit (2018): Now we can consider your claims. The statute that says otherwise is unconstitutional as applied to these children.
  • Fourth Circuit: The multiple life sentences meted out to Lee Boyd Malvo, one of the "D.C. Snipers" who murdered 12 people over the course of seven weeks in 2002, must be vacated and reconsidered in light of intervening Supreme Court decisions restricting life sentences for juvenile offenders.
  • Job applicant divulges a 15-year-old nonviolent drug conviction (she says it was her roommate's drugs, and she's never had trouble since) to Prince George County, Va. school officials; they hire her to be budget director, a position that entails no direct contact with children. Oh no! Turns out the conviction disqualifies her; she's fired. Local news runs a story that (though it doesn't name her) implies she may have lied about her criminal history in her application. Defamation? The Fourth Circuit says nope, she's a "public official," and she didn't prove the local news acted with "actual malice."
  • Police receive two calls that a white male with a blue and white shirt is drunk at a Newport News, Va. pool hall and carrying a gun. Police: We did a pat-down of the one guy who matched the description, found a gun, and arrested him. Defendant, an ex-convict: Cops didn't have reasonable suspicion that I unlawfully had a gun on me. District Court: A sole white person (with a gun) in a setting where most people are black is suspicious, especially in light of the recent Charleston church shooting. Fourth Circuit: The "mere fact that a person of one race is present among a group that is predominantly of another race does not provide a basis of suspicion of criminal activity." But police had reasonable suspicion; no need to suppress the evidence.
  • Veterans who served in Iraq and Afghanistan allege exposure to smoke from open-air burn pits where military contractor disposed of waste, including batteries and tires, caused serious, sometimes fatal, illnesses. Further, the contractor supplied harmful, insufficiently potable drinking water. Fourth Circuit: Can't sue the contractor over that. The record, developed by means of a "herculean" discovery process, shows the military had control over the contractor's operations, and we can't second-guess the military's decisions in a war zone.
  • Judge Willett of the Fifth Circuit puts things bluntly in this opinion about a marijuana conspiracy. In a separate case, Judge Willett cites the Notorious B.I.G. for the proposition that "in bankruptcy litigation, as in life, 'the more money we come across, the more problems we see.'"
  • Former convict feels he needs to carry a gun in the Denver neighborhood where he grew up: Whenever he visits, people keep shooting at him (two of his friends were killed in front of him, and he got shot in the leg). District Court: As a felon, it's unlawful for you to carry a gun, even if you feel unsafe. You should stop going home, but since you won't stay away, and it endangers bystanders when people shoot at you, you get an above-guidelines five-year sentence for being a felon in possession of a gun (for third time in seven years). Tenth Circuit: Affirmed.
  • Crime scene photo shows robber's arm is covered in tattoos; Birmingham, Ala. officer arrests man with only one tattoo. (He's released the next day.) Eleventh Circuit: No qualified immunity. The man can sue the officer for unlawful arrest.
  • Georgia inmate alleges a corrections officer physically and sexually assaulted him. Federal jury agrees, awards him $200k. Inmate then moves to have the court order Georgia to garnish the officer's wages to pay the judgment. Eleventh Circuit: Not so fast. Sovereign immunity means a state can't be sued unless the state waived immunity or Congress abrogated immunity. Georgia hasn't waived its immunity for garnishment suits, so the inmate is out of luck in federal court. Try state court.
  • CFPB (or BCFP?) and NY Attorney General: Companies that offered cash payments to litigants (September 11 victims and former NFL players with brain injuries) waiting for payouts from settlement agreements were in fact offering usurious loans (under NY law) and engaging in deceptive and abusive tactics (under federal law). District court: I'm kicking the CFPB out of the case because the CFPB's structure (a single director, who does not serve at the pleasure of the president, rather than a board) is unconstitutional; the entire CFPB section should be stricken from the Dodd-Frank Act. The company isn't off the hook, though; New York can pursue its claims. (The decision creates a split with the D.C. Circuit, which upheld the CFPB structure in January.)
  • And in en banc news, the Sixth Circuit will reconsider its holding that Ohio may not prohibit the state's health dep't from offering federal health funds (unrelated to abortion) to any organization that provides or promotes abortion. (Ohio might need a new lawyer to argue the case, though: The Ohio Solicitor General has since been nominated for a judgeship on the Sixth Circuit.)

Dallas officials envision a Starbucks or Macaroni Grill where Hinga Mbogo's auto repair shop thrived for 30 years. But rather than offer to buy the property, officials rezoned it and ordered him to move his business elsewhere. (Other repair shops shut down years ago and have since become vacant, trash-strewn lots.) Over 92,000 people signed a petition urging City Council members to let Hinga stay, but instead the Council sued him, seeking over $300,000 in fines. In 2016, Hinga countersued, arguing the Texas Constitution forbids retroactive civil legislation. This week, a state appeals court sided with Dallas, holding Hinga's interest in running an auto shop is not "firmly vested." To the Texas Supreme Court! Read more here.

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

  • ||

    I don't understand the Georgia inmate case. How does sovereign immunity apply to the individual officer?

  • Rossami||

    I was wondering the same thing. The only sense I can make of it is that the garnishment decision has the effect of compelling a couple of low-level payroll clerks to process the guard's paycheck a little differently. This is no different than is done in thousands of companies across the US, though usually for much less egregious circumstances such as alimony, child support or overdue library fines.

    But since it's a federal judge compelling a state payroll clerk, somehow that violates the anti-commandeering doctrine? Seems like a stretch to me. This seems like it should be government-as-employer rather than government-as-sovereign.

  • jph12||

    It seems a little more complicated that that. For whatever reason, the plaintiff wasn't trying to garnish the guard's salary directly. Instead, the plaintiff was trying to cut out the middleman and garnish payments from the State's indemnification fund that the the plaintiff alleges the guard was entitled to receive. That seems to be enough to bring the possibility of sovereign immunity into play.

  • TwelveInchPianist||

    It doesn't. It applies to the Georgia Department of Administrative Services.

  • ||

    I still don't really follow. If Georgia had paid the money for indemnification to the guard, there'd be no issue. The suit is not against the state. It just purports to attach money the state owes.

  • MatthewSlyfield||

    They are trying to garnish the guards wages, that is have money deducted from his paycheck before he gets it and have that money paid to the plaintiffs. Garnishment technically requires legal action against the employer, which in this case is a government agency, thus sovereign immunity applies.

  • ||

    Still kind of ridiculous, given that garnishment imposes no burden (other than administrative) on the employer.

  • James Pollock||

    Depends on whether it's done correctly or not. Done incorrectly, it opens the doors for litigation between employee and employer. And there are LOTS of ways to do it incorrectly.

  • Stephen Lathrop||

    I'm sympathetic to the Dallas auto repair shop guy, and hope he wins. But I wish the Institute for Justice would change its motto. "Litigating for Liberty," is an obfuscation. It enmeshes IJ cases in libertarian politics when they use it. Why not a more forthright, "Litigating for Property?" Or, "Litigating to End Regulation?" Hope they aren't shy about saying what they generally have in mind. To imply "Liberty" can be understood as a synonym for "Property," or for "freedom from regulation," too much narrows the scope of the former.

    Advocates for property rights ought to say they are advocates for property rights. Advocates for limiting regulations ought to say that. Then face up to the fact that what they advocate is Constitutionally less expansively protected than they want it to be.

    Pretending otherwise as a means to accomplish political framing invites annoyance, maybe at the expense of IJ clients. If I were hearing the auto repair case, I would have to practice self-discipline to prevent my estimation that IJ is less than forthright from interfering with my conclusion that the repair guy ought to win on the merits.

  • Eidde||

    "It's nice that the firemen are putting out that fire, but I'm worried about the chipped paint on one part of their fire truck, indeed, it really bothers me."

  • TwelveInchPianist||

    Regulation is Liberty!

    Some people think that being able to conduct your business on your property is an important aspect of Liberty. If you don't, that OK. This is America, you're allowed to be wrong.

  • ||

    Most Americans don't anymore. They think that businesses operate under the auspices of a government "license," by which you give up all of your rights to run your business if you do so in a way that offends homosexuals.

  • David Nieporent||

    If I were hearing the auto repair case, I would have to practice self-discipline to prevent my estimation that IJ is less than forthright from interfering with my conclusion that the repair guy ought to win on the merits.

    Well, I guess it's lucky that you're no more a judge than you are a philosopher or historian.

  • Stephen Lathrop||

    Because legal fact finders should be barred from weighing ulterior motives when assessing the credibility of legal arguments?

  • David Nieporent||

    Uh, yes, in fact. (Especially the alleged ulterior motives¹ of the litigants' lawyers.)


    ¹I don't think it counts as an "ulterior motive" in the first place simply because their view of liberty is not as cramped as yours.

  • Stephen Lathrop||

    Nope. I'm the one with the expansive view of liberty. IJ—along with libertarians generally—is the proponent of the cramped view.

    I acknowledge a right to self-government on majoritarian principles, and I acknowledge also property rights, both as important components of American liberty. Libertarians of the IJ stripe largely deny the right to self-government. They dislike its inherent conflict with propertarian ambitions, which libertarians seek to maximize.

    I'm content to give liberty more scope, even at the cost of some conflicts, and a consequent need to balance the scope of one particular liberty against another. Libertarians seem troubled by any notion that a right can exist, but not be absolute and all encompassing.

    That tendency is bound to limit the number of rights libertarian ideology can embrace. The more there are, the more conflicts will have to be accommodated, and accommodation seems to make libertarians itch. So they narrow the scope of rights to only those they most prefer, and wish to see maximally empowered as the sum of liberty.

  • David Nieporent||

    I acknowledge a right to self-government on majoritarian principles,

    That's an oxymoron.

  • Harvey Mosley||

    I wish the American Civil Liberties Union would change their name. Their definition of civil liberties is different than mine.

  • FlameCCT||

    A merican
    C ommunist
    L itigants
    U nited?

  • bernard11||

    All we need to know about the car repair situation is captured in one quote from the linked article (emphasis added):

    In denying the specific use permit, Dallas City Councilman Rickey Callahan, a real estate developer, explained his vote,...

    (The permit would have let the shop stay).

    KMA, Rickey.

  • Harvey Mosley||

    I had to check the calendar to make sure it isn't April 1st. I agree with bernard11!

  • Jerry B.||

    "Students who are concerned about their privacy can take advantage of the school's single-occupant facilities for using the restroom, showering, and changing clothes."

    Interesting that if you tell a transgendered student to use the single-occupant facilities, it's a civil rights violation, but if you tell students concerned about their privacy to do so, it's a remedy.

  • Eidde||

    All students are equal, but some are more equal than others.

    Four legs good, two legs *better!*

  • Rev. Arthur L. Kirkland||

    How would you resolve the tension and determine which person -- the transgendered person, or the person who objects to the transgendered person's conduct -- gets to decide which bathroom is to be used by the transgendered person, Jerry B.?

  • ||

    Easily. You resolve it in favor of the person who is not mentally ill.

  • James Pollock||

    So THAT'S why you keep going outside to pee on trees.

  • damikesc||

    Limit the bathroom to the people who biologically belong there.

  • James Pollock||

    Bathrooms are rooms with fixtures to facilititate peeing, so... only people who need to pee should be in them. Agreed.

  • Krayt||

    1. The transgenered argument that got us to this point was the literal physical danger of an "effeminate boy" going into the boy's room. The single-person bathrooms solve that.

    2. The complaint of females is based on the recognized right to not have to expose yourself, or be exposed to, a person with a shocking dong. Sending said females to single bathrooms also solves that.

    If one or the other must use single to avoid the other's human rights being violated, I'm fine with leaving the status quo of dongless womens' rooms.

  • James Pollock||

    "Interesting that if you tell a transgendered student to use the single-occupant facilities, it's a civil rights violation, but if you tell students concerned about their privacy to do so, it's a remedy."

    If you don't want to use the bathroom because of someone who's in there, either A) wait for them to come out, or B) go somewhere else. The fact that you don't want to share with them doesn't magically grant you the right to kick them out.

    This is not difficult or complicated. Still too much for you? I'll try again.

    We tell the people who object to transgendered persons having to pee that they have a choice of using the shared bathrooms or using the single-occupant ones. If they choose to avoid the shared bathroom, that's their choice to do so.
    If you want to tell the transgendered person that their only permissible choice is to use the single-occupant bathroom, you're taking the choice away from someone. See how those are different?

  • Jerry B.||

    The issue as I see it is that transgendered people often don't present the physical characteristics of their chosen gender.

    If one physiological male who decides they are female wants to use the girl's locker room, and 30 girls are made uncomfortable by that persons nudity, which would be considered sexual abuse or assault by that person if they were physiologically male and considered themselves male, who gets the State's protection?

    How about one physiological male who considers himself male, but says he identifies as female just to see naked girls?

  • James Pollock||

    "If one physiological male who decides they are female wants to use the girl's locker room, and 30 girls are made uncomfortable by that persons nudity, which would be considered sexual abuse or assault by that person if they were physiologically male and considered themselves male"

    Back up. Which state's definition of sexual abuse or sexual assault are you using here? I'm not familiar with the statute you're referring to.
    While you're looking THAT up, feel free to consider what about if people are made "uncomfortable" by people who happen to have matching reproductive equipment?

    "How about one physiological male who considers himself male, but says he identifies as female just to see naked girls?"
    We'll get you some help.

    In the meantime, we'll just let the people who are in the bathroom to pee, pee in peace.

  • David Bremer||

    (a) You conveniently dodge the main objection by talking about peeing only. But the ruling also addresses locker rooms. That's more than just peeing; that's an area where you must disrobe and, often, shower.

    [I note that the school in question changed the showers to allow people to change in single stalls; however, nothing is forcing the transgendered student to use the stall instead of the community space. Even still, I understand why women would feel uncomfortable even in that situation, just as I would be upset if you entered the bathroom while my wife was in the shower, even if you couldn't see around the shower curtain.]

    (b) I didn't look up the statute for the specific state, but if you were walking along the street and showed your penis to a girl, you'd be subject to charges for indecent exposure. Since nothing forces the transgender student to use the single stall, women not wishing to be exposed to a penis must go elsewhere. Thus the point that we are overriding the rights of 30 girls (in the hypothetical) to accommodate the wishes of one transgendered student.

  • lucia_l||

    James Pollock,
    Waiting is possible in a club. However, waiting is probably not possible in this instance because this is high school locker room. The kids are required to change during a brief amount of time before and after class, and then report to class on time. Those who wait will late for PE and their following class.

    If the issue is one girl using the single-occupant changing room, vs one transgendered kid using it, the schools solution works.

    But I'd be surprised if it's not a number of girls who object. I'm also surprised a number of girls haven't collectively decided to use the offered "solution" of all using the single-occupant changing rooms serially and reporting late for PE and asking the gym teacher to allow them out early so all 10 of them can change without being late for their next class. Those girls may even be able to get notes from their parents making the request.

    If the only way for them to get privacy is to be late for PE, they ought to be allowed to be late to PE.

  • James Pollock||

    "Waiting is possible in a club."
    It's possible anywhere. So is planning ahead.

    "I'd be surprised if it's not a number of girls who object."
    You might be surprised by the number of them who aren't objecting. .

    "If the only way for them to get privacy is to be late for PE, they ought to be allowed to be late to PE."

    True. But probably leads to " but what about people who want privacy from all of, and not just half of, their peers?" being taken seriously, to the point of legal proceedings.

  • damikesc||

    Students who are concerned about their privacy can take advantage of the school's single-occupant facilities for using the restroom, showering, and changing clothes.

    Not good enough for the tranny but good enough for the people who ACTUALLY are of that gender?

    Seriously?

  • ||

    Being a bigot does not grant you the right to strip someone of their rights. No one is telling bigots where they can pee, and having to hold it or find another bathroom to avoid someone for being transgender is no different than having to hold it or find another bathroom to avoid someone you owe money to -- if you have a problem, you're free to leave.

  • Jerry B.||

    Doesn't have to bigotry.

    If you were a 13 year old girl in your school locker room and saw someone who was physiologically a male walk in and remove their clothes, or get in the showers with you naked, woukd your concerns be invalid?

  • James Pollock||

    The rule remains:
    If you don't want to be in the bathroom with someone (for whatever reason, or no reason at all), then don't be in the bathroom with that someone. Everyone decides for themselves.

  • Krayt||

    No, that's not the rule. The rule is the government recognizes that you habe the right to not be forced to expose yourself to the opposite gender, that being a penis, because it is the shock value of the psyche driving this.

    So, no, government does not have the power to violate that right. It cannot say to a young female, you must expose yourself to someone with a penis.

    We have already long acknowledged this principle. So if anyone has to go use the single one, it remains the person with the penis. They are only sent to the women's room for fear of assault in the men's, not because their psyche is damaged, which will never, ever, ever, ever be as bad going into a men's room sans danger, as the young dong-exposed lady's will be.

    Which is it? Danger, or psychilogical damage being forced into a men's room, for the tg?

    Neither suffices to demand the ladies use the single rooms.

  • James Pollock||

    Swing and a miss.

    Nobody is demanding "the ladies use the single rooms".

    "you habe the right to not be forced to expose yourself to the opposite gender"

    If you are in a room by yourself, you are not forced to expose yourself to the opposite gender.

    Where is it, I ask, that you are imagining that people ARE being forced to expose themselves to anyone? We do not yet have mandatory physical inspections at the bathroom doors.

  • Jerry B.||

    "Nobody is demanding "the ladies use the single rooms"."

    No one was demanding that transgendered persons use the single room either. They could have used the bathroom/locker room assigned to persons of their physiological gender. They were also offered the option of using the single person rooms if being in the presence of people of the same physiological gender but different chosen gender made them uncomfortable.

    Why is that choice a rights violation if offered to a transgender person, but not if it's offered to a non-transgender person?

  • James Pollock||

    "Why is that choice a rights violation if offered to a transgender person"

    For people of normal intelligence, the difference between "you have a choice of doing A or B" and the "you have no choice. Do A" presents an obvious difference. For you, not so much.

    So for you, only one choice. Stop worrying about where other people are peeing.

  • Jerry B.||

    Except I explicitly gave two choices for transgender persons. Use the locker room designated for your physiological gender, or use a single person room.

    Based on this ruling, the transgender person actually has more choices than the non-transgendered, as they have the right to appear in locker rooms assigned to either physiological gender, or use the single person rooms, whereas a non-transgender male, for example, would be punished for showing up in a girls' locker room.

  • James Pollock||

    "Based on this ruling, the transgender person actually has more choices than the non-transgendered"

    You're bad at math. 3 is not greater than 3.

    "Except I explicitly gave two choices for transgender persons"

    Whereas 2 IS less than 3.

    Which is why I keep pointing out to you that you're limiting the choices of transgender people, whereas the status quo does not.

  • James Pollock||

    Tell you what. Let's look at some use cases that don't involve transgender people at all.

    1. Single parents with young children of the opposite gender.
    You have a choice... take them in the bathroom you would use yourself, or take them in the bathroom THEY would use if by themself... until they are old enough to go by themselves.

    2. The long line at the ladies.
    Some facilities have inadequate provision for the ladies' room. Some women solve this problem by stepping out of the line for the ladies', and using the gents'

    3. The single-sex dorms.
    This was a fun period of my youth. The university had single-sex dorms. Single-sex dorms meant single-sex bathroom facilities. But women sometimes had occasion to be in the men's dorm, and vice versa, and sometimes nature calls.

    4. Cleaning and maintenance
    Does every entity with bathrooms need to hire two janitors and two plumbers? Or can one take care of both rooms?

    Now, keep in mind, the questions about "what about the perv who likes to go invade other people's privacy" and "what about the perv who likes to show off their personal regions" are already covered by existing laws against those specific behaviors. We're just talking about needing a place to pee.

  • Jerry B.||

    As for your non-transgender examples...

    Small children in a public toilet are quite different from teenagers in a locker room with no partitions.

    Generally, women who use a mens' room use a stall, thus no exposure of genitals. If a man went into a ladies room, pulled out his penis and peed in the sink, do you think he might get in trouble?

    Women in a single sex male dorm are generally there by choice and are not forced to either show their genitals to others, or see other's genitals.

    Generally male custodians will ask an exiting female if the bathroom is empty, and call out to alert anyone before entering.

    I'd like to find a better solution to the problem of trans-gendered persons using the bathrooms/locker rooms, but telling the non-transgendered "If you feel uncomfortable, you have to go sonewhere else", doesn't seem to conpute, since saying to a trans-gender person, "If you feel uncomfortable, you have to go somewhere else" is apparently a civil rights violation.,

  • Jerry B.||

    Non-transgender people only have two choices - use the locker room assigned to their physiological gender, or the single person room. Exposing their genitals to students of the opposite sex is a sex crime.

    You apparently think you know what I'm saying without reading and understanding my posts, which makes discussion with you kind'a pointless, since you're having an argument with your stereotype instead of me.

  • James Pollock||

    "Generally, women who use a mens' room use a stall,"
    "Non-transgender people only have two choices - use the locker room assigned to their physiological gender, or the single person room"

    You can't even keep your story straight, and this is somehow caused by my not reading your posts. OK, then.

    " Exposing their genitals to students of the opposite sex is a sex crime."
    You're confusing one thing with another thing. I suppose that's my fault, too.

    "are not forced to either show their genitals to others, or see other's genitals."
    Where are you that either of these things happens in the bathrooms? Where's all this "forcing" happening?

  • Jerry B.||

    Well, let's see. the issue of transgender students (which is the focus of the ruling in question) involves bathrooms or locker rooms in schools. You have managed to get about as far from this as you can, I expect because you have no logical response to the instant question..

    Bathrooms, if fitted with stalls with doors, shouldn't be much of an issue.

    Unless locker rooms have changed quite a bit since I was in school, you are going to see other peoples' genitalia, and they're going to see yours.

    Some transgender people would apparently prefer to see only the genitalia of their chosen gender, and have theirs' seen by their chosen gender, rather than their physical one. The court ruling has made this accommodation for them by basically allowing them access to either locker room or a single-person room.

    How about the non-transgender people who would prefer to see, or show, only the genitalia of people with the same equipment as them in a locker room setting? They're basically being told, "If you don't like to see the trans-gendered student's tackle, or have them see yours, you have to leave the locker room and use a single person room".

    Seems like unequal accommodation to me.

  • James Pollock||

    "Bathrooms, if fitted with stalls with doors, shouldn't be much of an issue."

    And yet, people just. keep. going. on. about. it.

    "How about the non-transgender people who would prefer to see, or show, only the genitalia of people with the same equipment as them in a locker room setting?"

    How about all the people being told "if there's someone in the locker room that you don't want to be in the locker room with, don't be in the locker room with that person".
    See how that's one rule, that applies to everybody?
    You can keep trying and failing to make it into multiple rules that apply to people differently, but that won't make it true. Note that it works whether the reason people don't want to share bathrooms is because they're transgender, or intersex, or different races, or whatever.

    Now, I don't want to be on the same Internet as you, so I'm going to exercise my right to solve that problem.

  • David Bremer||

    No, we're not; we're all talking about locker rooms. You keep going on about bathrooms instead

    Focus exclusively on this this situation (which describes a real-life locker room in various hockey rinks used by high schools): The locker room consists of one large open room. The room has communal showers. There is a toilet that has a sort of partition, but no stall door. There is also a separate single-user room, generally used for referees.

    The PhysEd class goes to the rink for class. Students must change clothes, then shower afterward. A male identifying as a female refuses to change with males. The students reports feeling uncomfortable/unsafe with other males. The biological girls object because they feel uncomfortable/unsafe with a male in their room.

    Which person/people feeling uncomfortable/unsafe, if any, should use the single-unit room? Does that change if the single-unit room cannot accommodate all the objecting parties?

  • James Pollock||

    "Focus exclusively on this this situation (which describes a real-life locker room in various hockey rinks used by high schools):"

    Hockey rink? I live in the part of the United States that considers hockey to be Not Part of the High School Curriculum. I'll do my best.

    "The locker room consists of one large open room. The room has communal showers. There is a toilet that has a sort of partition, but no stall door. There is also a separate single-user room, generally used for referees."

    So. If there's somebody in this room that makes you uncomfortable, don't go in it. Wait for the person to leave, or go somewhere else. Hmm. Still works, just like it did with the bathroom. Works whether the objected characteristic is being transgender, of different gender, of being different race, or just smoking in the boy's room. Hey, hey, now teacher, don't fill me up with no rules...

    It's such a simple rule. The fact that you're uncomfortable gives you no special authority over other people. You get to decide what YOU do. The obvious solution is to remove yourself from whatever it is that's making you uncomfortable. Too complicated?

  • David Bremer||

    So. If there's somebody in this room that makes you uncomfortable, don't go in it. Wait for the person to leave, or go somewhere else. Hmm. Still works, just like it did with the bathroom.

    Yet that is only being told to cisgendered students. The court said the exact same option could not be given to transgendered students (i.e., it is not permissible to tell transgendered students feeling uncomfortable with their respective biological genders to use an individual stall if they feel uncomfortable).

    Regardless, this isn't an option because (a) you need to change at the beginning and end of class; (b) you are still at risk of someone walking in the room when you're there in a state of undress; and (c) if a sufficient number of students object and prevent people from using the single-user rooms.

  • D-Pizzle||

    But the transgendered person who is uncomfortable going into the room assigned to those of their biological sex not cannot be told "[D]on't go in it." How are you not getting this?

  • Jerry B.||

    "Now, I don't want to be on the same Internet as you, so I'm going to exercise my right to solve that problem."

    "Run away, run away!"

  • James Pollock||

    More of a "don't wrestle with pigs. You get dirty, and the pigs enjoy it". thing.

  • Ridgeway||

    The transgender has the same choice. S/he can use the bathroom/locker room that corresponds to his/her biological sex, or s/he could use the single person room.

  • James Pollock||

    Everybody has the same choice. Use the bathroom/locker room, or don't.

  • ||

    This is why transgenders (and homosexuals) should have been locked up in mental hospitals long ago. Al long as they're roaming free, they, with the support of their anti-Western liberal turncoats, will continue to try to destroy Western society and successful tradition with their deviance. If you forcibly commit them, you don't have to worry about what bathroom they're using.

  • Jerry B.||

    Oh, shut up.

  • ||

    And the bigots with a pathological need to deny human rights to others arbitrarily can join them in those mental hospitals.

  • ||

    Re: Honduran and Salvadoran mothers fear violence, cross into U.S. with their young children

    Perhaps a stupid question, but how on Earth does a mere statute prohibit a federal court from doing their job as specified by the Constitution? If a statute could do that, then Congress could effectively abolish judicial review of the constitutionality of statutes simply by enacting a statute saying the court has no authority in that area.

    How does a statute override the Constitution, to the extent that a JUDGE agrees that it does, without any amendment of the Constitution?

  • James Pollock||

    The Constitution grants to Congress the right to set naturalization policy. It does not create competing rights for foreigners to override Congress' authority. So... foreigners who'd like to enter the United States have those rights granted by Congress, and no others.

    In contrast, the Constitution grants a number of rights to citizens, and some more to lawful residents, and some more to everyone within the borders. Congress can't take away those rights without due process, and "due process" includes a right to challenge the government's actions in court. So courts can (and do) act to protect people inside the country or otherwise subject to its jurisdiction, but may not be authorized to act for everyone, anywhere in the world, even when they're objecting to something the government has done or is doing.

  • Syd Henderson||

    "Allegation: In 2008, NYPD officers and a state prosecutor obtain arrest warrant to bring material witness before a judge. Yikes! They detain the witness for two days and do not bring her before a judge. Second Circuit (2013): The officers and prosecutor are not entitled to absolute immunity. Second Circuit (2018): Nor are they entitled to qualified immunity. There's not a lot of case law on abusive detentions of material witnesses, but this is the rare case where no case on point is necessary; the officers and the prosecutor knew to abide by the terms of the warrant. The witness can sue."

    What bothers me here is that it took ten years to settle the case this far on what should have been a slam-dunk case.

  • Jerry B.||

    But this case contained the magic words, "NYPD officers and a state prosecutor", which grants the power of infinite slowness to the proceedings.

  • Voize of Reazon||

    Judge Willett of the Fifth Circuit puts things bluntly in this opinion about a marijuana conspiracy.


    I see what you did there.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online