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Bathroom politics and transgender discrimination: House GOP bill is constitutionally and legally suspect

Prejudice always seems to start in the bathroom. First it was the separate but equal doctrine that forced African-Americans to use segregated facilities, including bathrooms. Then it was Phyllis Schlafly and those opposed to the Equal Rights Amendment for women who, as a way to defeat the amendment, raised the fear of men using women’s bathrooms. Opposition to gay rights was flamed by visions of sexual predators lurking around bathrooms. Now it is the opponents of transgender rights who are using the bathroom as a way of furthering prejudice by supporting legislation requiring individuals to use bathrooms designated for them based on their birth gender. 

schultz portrait
David Schultz

Yes, privacy is an important legal right in America and should be respected. Yet often concerns about privacy mask underlying hostility and discrimination. Privacy claims too often are incorrectly invoked to thwart another powerful legal claim – the right to equal treatment. When one looks at the Minnesota House Bill HF 3396 – The Bathroom Bill – requiring individuals to use the bathroom that corresponds to their birth assigned gender, it is clear that the proposal should be considered unconstitutional under both the U.S. and Minnesota Constitutions, and illegal under both federal and state law.

Constitutional issues

The Fourteenth Amendment’s Equal Protection clause declares that no state shall deny to any person within its jurisdiction “the equal protection of the laws.” While originally adopted after the Civil War to prevent discrimination against African-Americans, the Supreme and lower federal courts have used the Equal Protection clause to apply to many forms of discrimination, including that based on sex. Courts have also used the Equal Protection Clause to address discrimination against gays and lesbians, and in recent years it has been invoked to protect transgender individuals. In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), a federal court of appeals ruled that the termination of a transgender person by the State of Georgia because she was transitioning from one gender to another was a form of sex discrimination that violated the Fourteenth Amendment.

The Minnesota Supreme Court has yet to adjudicate and rule on a transgender discrimination claim under the state constitution. Were it to do so it would reach arguments similar to that in Glenn. The reason is that in cases such as State v. Russell, 477 N.W.2d 886 (Minn.1991) the court has argued that the State’s Equal Protection Clause effectively provides as much or more exactly scrutiny or protection against discrimination when compared to the U.S. Constitution. If that is the case one can make a strong argument that the bathroom bill also violates the Minnesota Constitution.

Statutory issues

Turning to statutory claims, Title VII of the 1964 Civil Rights Act bans workplace discrimination based on, among the factors, sex. The law has been invoked to prohibit discrimination against transgender individuals. The basis for applying it that way started in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), where Justice Antonin Scalia ruled for the court that title VII applies to any form of sex-based discrimination. Discrimination against transgender individuals is sex-based. In cases such as Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), and Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), three different circuits of the federal courts agreed that Title VII applies to transgender discrimination.

Most directly and recently, in January 2015 Deluxe Financial Services settled a Title VII case arising out of the company and its employees harassing a transgender person, including forcing the individual to use the bathroom as determined by her birth gender. The federal Equal Employment Opportunity Commission had ruled in favor of the transgender person, saying the company violated Title VII of the Civil Rights Act of 1964 by subjecting her to “a hostile work environment and disparate treatment because of her sex, including because Ms. Austin is a woman who is transgender …”

Finally, at the state level, the clearest indication that the bathroom bill is illegal resides in the how it seeks to amend the Minnesota Human Right Act (MHRA) which, among other things, bans discrimination based on “sexual orientation.” HF 3396 explicitly changes that law to create a bathroom exception. In Goins v. West Group, 635 N.W.2d 717 (2001) the Minnesota Supreme Court adjudicated a claim that a company had violated the act when it required a transgender person to use the bathroom that corresponded to her birth gender. The court ruled no in a bizarre case.

Ripe for reversal

On the one hand the court declared that the MHRA defines “sexual orientation” as including “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness,” therefore suggesting that a transgender individual may make out a potential claim under the act. However the court then went on to argue that the employee had failed to establish that she had a right to use the bathroom designed for use by her biological gender and therefore her sexual orientation claim failed. Logically the case made no sense – the case was not about a transgender person wanting to use the bathroom designed by her birth gender and whether she had a right to use it. Goins is ripe for reversal, and that too in part explains the reasons for the bathroom bill.

Overall, there are strong reasons to think that House Republican bathroom bill — which is the subject of a hearing at 8:15 a.m. on Tuesday, April 12 — is legally suspect for several reasons at the federal and state level. One should not let false claims of privacy trump civil rights. Prejudice has no place in the bathroom.

David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take, where a version of this piece first appeared. 

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Comments (68)

  1. Submitted by Ray Schoch on 04/11/2016 - 06:21 pm.

    Lately

    …it appears that Republicans are genuinely intellectually bankrupt. Legislation like this proposal is apparently all they can muster. Thoughtful Republicans from my youth are likely rolling in their graves as the party of “small government” manages to find plenty of exceptions to that principle when it suits the prejudices of the more strident members of their tribe.

  2. Submitted by Paul Comeau on 04/11/2016 - 07:11 pm.

    Let me Google that for you

    http://caselaw.findlaw.com/mn-supreme-court/1061687.html

    Yes MN Supreme Court has heard a case on bathroom use by a transgendered person. Sadly they voted agains Ms. Goins.

    So you might want to research a bit more before declaring that the MN court has yet to rule on transgender rights.

    • Submitted by David Schultz on 04/12/2016 - 06:30 am.

      Read more carefully

      Paul:
      You might want to read my op-ed more carefully before commenting. I said the MN S Ct. has yet to rule on the matter from a state constitutional law perspective. It has not done that. I then a couple of paragraphs latter discussion a MN S.Ct. decision made on statutory grounds and explain why it is ripe for reversal.

    • Submitted by Pat Terry on 04/12/2016 - 07:51 am.

      Reading is fundamental.

      Did you actually read this article? Because if you had, you would see that Schultz discuses the Goins case at some length. No Google necessary.

      What Schultz actually said was that the court had never addressed the issue under the Minnesota constitution, which is true since Goins just concerns the Minnesota Human Rights Act.

  3. Submitted by Dennis Carlson on 04/11/2016 - 08:37 pm.

    Well done!

    David, I think this is one of the best and most important pieces you have done. I am a fan of almanac and WCCO on Sunday mornings so have heard you speak on multiple occasions and have always been impressed not only with your political take of the local and national scene (particularly this year) but also your knowledge of state and federal law.

    In my six years as superintendent I literally talked to hundreds and hundreds of gay students. In all of those conversations never once did a student tell me their sexual identity was a “choice.” They ALL believed their sexual identity was WHO they were. Sounds like a civil right to me.

    In 2016, in the State of Minnesota, armed with State and Federal Law, it seems to me that our time would be better served in trying to make sure that the rights of all would be honored and respected. In our public schools, who accept all that walk through our doors, one would think we would be allowed to show that respect on our bathroom door signs and not hear a message that would more likely be seen scrawled on a bathroom wall.

  4. Submitted by Ilya Gutman on 04/11/2016 - 09:52 pm.

    Questions

    First, the law. The separate but equal doctrine that forced African-Americans to use segregated bathrooms was rightfully found unconstitutional. But since both race and gender are protected classes, isn’t this doctrine equally unconstitutional for segregating genders? In other words, creating separate bathroom facilities for different genders should be illegal…

    And now privacy. The reason behind separate bathrooms is that females usually feel uncomfortable being naked in the presence of naked males. Allowing people to use bathrooms (and locker rooms) corresponding to their gender identity will expose naked females to naked male bodies. Will it make it more comfortable for women to know that those apparent males think of themselves as females? How would women know what they actually think? Just because they came in dressed as females doesn’t mean anything since crossdressers would wear women clothing too…. I don’t know the answers to these questions so just asking…

    • Submitted by Joel Fischer on 04/12/2016 - 08:44 am.

      What the law would do, however…

      is force people, who by all appearances are male, to use a women’s restroom. How do you think women will feel seeing a burly and bearded man walking into their space? Will they just shrug their shoulders and accept it or will they make a fuss?

      • Submitted by Barbara Dennis on 04/18/2016 - 01:35 pm.

        Transgender bathrooms

        In a church in Waukegan IL I had a transgender maple come into the Bathroom when I was there. It wasn’t bad at all. I’d sat next to him during tThe conference and realized who he was with his madeup face and sandals with painted toenails. It was not threatening at all and I’m in my late 70’s!

  5. Submitted by Jim Million on 04/12/2016 - 05:36 am.

    “…false claims of privacy…”

    Really?? Isn’t the current separation a matter of “civil rights”?

    Then why not multi-sex/omni-sex bathrooms for everyone?

    [thinking about the signage now]

  6. Submitted by Dennis Tester on 04/12/2016 - 07:12 am.

    It seems to me

    that someone is suggesting that telling a person which public restroom they must use is a violation of their civil rights.

    That be the case I expect those folks would agree that the designation of Men’s rooms and Women’s rooms would be unconstitutional and we should expect those signs to come down in all schools and public places immediately.

    Now explain that brilliant thinking to your young daughter.

    • Submitted by Pat McGee on 04/12/2016 - 09:16 am.

      …that unisex bathrooms would not be a problem.

      We have them at home. A closed door is the same as a closed stall.

      I actually agree that you could stay that men’s and women’s rooms are unconstitutional and the signs could come down. I would have no problem with that as long as closed stalls are provisioned for all.

    • Submitted by Max Millon on 04/12/2016 - 10:06 am.

      Other benefits

      Gender neutral bathrooms make way more sense anyway for a variety of reasons – think about an elderly person with a caretaker that is the a different gender, families with small children, or a disabled person being helped by a family member of the different gender. You remove the stigma and awkwardness from all of these encounters really easily by just having gender-neutral bathrooms. That’s something I think would be easy to explain to a young child, because it’s common sense.

    • Submitted by Pat Terry on 04/12/2016 - 10:53 am.

      Think of the children!

      I expect that as with marriage and other LGBT issues, the young daughters will be just fine. The objection is with (some) older people. Don’t blame young people (and punish trans people) for/with your own hang-ups.

      • Submitted by Jim Million on 04/12/2016 - 11:15 am.

        Not “hang-ups”

        These are also civil rights of privacy, long established and codified.

        I’m sure the wheelchair-bound will not appreciate this further pressure on dignity. Or, do you propose exclusive rooms for the disabled, transgendered and otherwise?

        The logistics have not been considered by this author, it seems.
        So typical, isn’t this: enact statutory legislation, then figure out the details later. This one requires plotting all the details first.

        Ideology requires a proper test of practicality prior to statutory application of same.

        • Submitted by RB Holbrook on 04/12/2016 - 12:51 pm.

          The logistics

          Not considering the logistics is pretty common in this debate.

          How is this law going to be enforced? Will we need to carry our birth certificates in order to use a public bathroom? Or will there just be a network of undercover informants, peeking at other patrons?

          • Submitted by Pat Berg on 04/12/2016 - 03:03 pm.

            Simple!

            Strip search at the door!

            See how easy that was!

            No problem!

            • Submitted by Jim Million on 04/12/2016 - 05:19 pm.

              Not Sure

              that strip searches would be definitive measures, but really hadn’t thought that far.
              That process would bring back restroom attendants, however, creating more jobs.
              Maybe that’s part of this agenda, as well. Can never really tell these days.

            • Submitted by Todd Hintz on 04/14/2016 - 12:59 pm.

              Proposal

              Strip searches are so old school! Just subcontract the job to the TSA and have them use their body scanners, only without the (ahem!) sexual organ filter in place. The downside is the system would be so inefficient that people would either end up going home to do their business or soil themselves while they wait. Maybe they could set up a pre-screened program. Pay your $80, get it all checked out, and then flash your, um, ID at the bathroom door.

          • Submitted by Jim Million on 04/12/2016 - 05:15 pm.

            Pretty Common?

            Then, it’s pretty apparent logistics and design are critical components of this discussion.

          • Submitted by Jim Million on 04/12/2016 - 05:34 pm.

            Oh, RB

            Forgot to mention I don’t believe birth certificates would help here. A better verification system would be a medical insurance card reader linked to a national database in order to confirm with electronic medical records. Wouldn’t that be in the spirit of HIPAA, ACA and coming requirements?

            • Submitted by RB Holbrook on 04/13/2016 - 10:48 am.

              So . . .

              “Wouldn’t that be in the spirit of HIPAA, ACA and coming requirements?” HIPAA has stringent protections for patient privacy, so I’m not sure what you’re getting at (except, perhaps, that it is an acronym for a federal law, and therefore should be included in a list of evils). As far as the ACA, it looks like every cloud has a silver lining, doesn’t it. I, for one, would never have thought that in order to relieve conservatives’ excretory-related anxieties, we would have to resort to a national ID card, but that’s just me.

              It’s telling that who can go potty where is what gets the Kulturkämpferin riled up these days. Such high-minded concerns must gladden conservative hearts everywhere.

              • Submitted by Jim Million on 04/13/2016 - 12:20 pm.

                Medical Records

                Get it? The HIPAA reference? Electronic validation? Your leap is rather far here.

                This discussion has nothing to do with Lib v. Con, OK? It’s about sense and also sensibility.

                • Submitted by RB Holbrook on 04/13/2016 - 01:03 pm.

                  Leaping around

                  “This discussion has nothing to do with Lib v. Con, OK? It’s about sense and also sensibility.” Except I see a pretty clear divide between supporters and opponents.

                  Exacerbating that divide is the real purpose of this bill.

  7. Submitted by Steve Hoffman on 04/12/2016 - 08:51 am.

    Then How About This

    These laws are stupid and arise only from meanness of spirit. But if you think they’re a good idea, try this: How would you feel about a big bearded lumberjack walking into the women’s room after your daughter, because he happened to have been born with a vagina? NOBODY is going to go through years of surgery, therapy and hormones just to get into a bathroom and spy on (presumably closed) stall doors. Brilliant thinking, indeed.

  8. Submitted by Steve Titterud on 04/12/2016 - 09:16 am.

    I’m wondering who is behind these bills, as

    …they are popping up all over the country in various states at the same time.

    Is there a central organizing entity behind this campaign?? How else did we get some 13 States considering anti-transgender bills, all at the same time ?? Mere coincidence ??

    https://www.aclu.org/lgbt-nondiscrimination-and-anti-lgbt-bills-across-country

    • Submitted by Russell Booth on 04/12/2016 - 01:59 pm.

      Republicans did a really great job in making gay marriage the Law of the Land. Gay activists were too timid to push for legal marriage. They were hoping for a more gradual acceptance of their existence. Republicans just steamrolled it all the way to the Supreme Court. It only took a few years. Look at where gay and lesbian civil rights are now thanks to fearless Republicans and their social activism.

      I would like to thank Republicans in advance for gaining US citizens Gender Identity civil rights protection at the federal level. Your actions on this issue seem to be working fine so far.

      Onward!

  9. Submitted by Greg Kapphahn on 04/12/2016 - 09:41 am.

    I NEVER Cease to be Amazed

    at how so many of our “conservative” brothers and sisters,…

    having been raised to believe that their bodies must be covered at all times,…

    not for the sake of privacy, self respect, and the respect of others,…

    but because their bodies are disgusting and shameful,…

    and that the natural waste products produced by their bodies are toxic and abhorrent,…

    (rather than those waste products being substances that need to be dealt with in appropriately safe and sanitary ways),…

    and having had the ability to imagine what it might be like to be someone different from themselves beaten out of them by those who raised them (literally or figuratively),…

    i.e. being forcefully taught that WE do not express care and concern for THOSE KINDS of people,…

    we JUDGE them to be horrible, nasty, shameful, slavering, out-of-control sinners,…

    so that we, though we are imperfect, ourselves, can feel superior to them,…

    and having been raised to believe that anyone who violates the rules of what we were taught to be common decency is just ASKING for inappropriate sexual contact,…

    and that no “red-blooded, American boy” can or should be expected to control himself when presented with an opportunity to take advantage of such a person,…

    NEVER look within themselves,…

    and the dysfunctional ways they were raised,…

    as the source of their discomfort over these “bathroom” and “locker room” issues,…

    but rather are SO uncomfortable as to simply want to make it all GO AWAY!…

    by passing laws which seek to make sure that their dysfunctional responses to bathrooms,…

    and the possible glimpsing of body parts therein will never be tweaked.

    I can’t help but wonder if these folk can even bring themselves to enter public restrooms in the first place when they are SUCH dangerous places.

    People who have been raised to be healthy individuals,…

    even when unexpectedly faced with a naked person of either gender,…

    even if that other person is in a state of advanced inebriation,…

    or “passed out,”…

    respond as if that person were fully clothed,…

    unless and until it become clear,…

    by mutual consent,…

    that some other response is appropriate and welcome,…

    whether that response is to help with finding appropriate attire and transportation home,…

    or physical intimacy.

  10. Submitted by Curt Carlson on 04/12/2016 - 10:15 am.

    Conservatives?

    I’m not the first to notice and comment on the irony that those who decry most loudly the intrusions of government are the ones who would use laws to intrude the most intimately in personal matters. But few self-called conservatives, in my experience, understand irony.

  11. Submitted by Dennis Tester on 04/12/2016 - 10:21 am.

    I’m still waiting

    to read the comments from a woman who thinks sharing a public restroom with a man who claims to “really” be a woman is ok with them. Because that’s who I’m concerned about. If it’s fine with them, then it’s fine with me.

    .

    • Submitted by Max Millon on 04/12/2016 - 10:38 am.

      Scenarios

      Dennis, I’d like to provide a few scenarios of how this type of thing plays out. I have a transgender friend. She transitioned several years ago, and very clearly is a woman. If you walked past her on the sidewalk you wouldn’t know her history or really think twice about her. You could sit next to her on a plane and not notice a thing.

      So let’s say we have Scenario A. Government doesn’t get involved, my friend uses the women’s bathroom, and literally no one notices. She has privacy and everyone else is comfortable.

      Let’s also add Scenario B. Our society is better about making the relatively simple transition to gender-neutral bathrooms, and there are no privacy or safety issues regardless of who is using what bathrooms. As an added bonus, ‘family’ restrooms are no longer needed, and caretakers of the elderly or disabled persons no longer need to worry about accompanying someone of the opposite sex in a restroom. Great!

      Now we have Scenario C. Under this type of law, she is forced to go into the men’s restroom, otherwise she is committing a crime. This makes the men uncomfortable, and also makes her uncomfortable. It also instantly outs her as transgender, which is dangerous given the high assault rates for transgender people. So she is forced to choose between making everyone uncomfortable and possibly opening herself up to assault, or breaking the law.

      So which of these scenarios would you prefer?

    • Submitted by Dana DeMaster on 04/12/2016 - 10:56 am.

      It’s Just Going to the Bathroom

      I am a woman who has no problem sharing with bathroom with transgender people, or cis-males for that matter. It is just peeing. I can’t think of a time when I’ve ever been in a public restroom where someone did not just do their business, maybe comb their hair or check their make-up, and leave. What does it matter? Regardless of gender or biological sex, no one is flashing their genitals around a public restroom. Don’t waste your concern on us. It is fine.

      Unisex bathrooms would be great. I have a son and a daughter. Sometimes my son still needs help in the bathroom (at age 7) and my daughter still does (age 4). She is often out with her dad without me. Family (unisex) restrooms are great for more people then just young families.

      • Submitted by Jim Million on 04/12/2016 - 11:43 am.

        Just to be clear….

        The concern here seems mostly about congregate bathrooms, not individual ones.

        I’m now considering the halftime rush implications at any sporting event. Trust me, in an urgent restaurant circumstance I have boldly entered the Women’s quarters and gone directly to a stall. Those using the washbasins and mirrors seemed unaffected, some with looks of mild surprise, others with pitty. It was the women who tentatively came from the adjacent stall who seemed rather perplexed. Another ran out without checking a mirror. Yet another met me on my way out and abruptly turned around, apparently thinking she was mistaken. I’ve often wondered at the shock of her next turn.

        Otherwise, we all simply ignored the facts and laughed…to some degree.

        In terms of construction expense and overall logistics, it might be better to leave Men/Women signage and facilities as they are, building only a third restroom labeled “Transgender,” or something perhaps less obvious. Has anyone considered that male/females might be lavatoried with female/males?
        [sorry, not fully briefed on the 2016 jargon here]

        This is much more socially complex than this author admits; but then, his mission is not to deal in details, but in simple civil principles. While working out all of this stuff, we should probably also consider those with some form of dysphagia that caused them to transpose letters, images….signs.
        (That was my ready excuse had I been arrested in Houston that night.)

        • Submitted by Pat Terry on 04/12/2016 - 01:11 pm.

          Really not that difficult

          My understanding is that transgendered means people who identify as a gender different than their original biological gender. I’m not sure why that requires a 3rd bathroom – can’t people just use the bathroom of the gender for which they identify?

        • Submitted by Carrie Anderson on 04/12/2016 - 01:23 pm.

          So from your story,

          it sounds like many women either really didn’t care or understood your pressing need. We all—male and female alike—get what that’s like. To paraphrase Dana, don’t waste your concern on us—it’s just peeing.

          In response to Ilya, who commented previously, here’s my perspective as a woman:

          In general, I do not get naked when I go to the bathroom. Even if I did, women’s rooms come with stalls. Also, I really do not care nor find it to be any of my business who is doing their business in a separate stall. Furthermore, if someone walks into the same restroom I’m in, how am I really going to know what their politically correct gender is? (Not that I care.) As Joel stated, this law would force people who by all appearances are male to use a women’s restroom. If that happens, what should I do? Call a gendarme so he can perform a pecker check? The worst threat I recently heard about concerned a group of teenage girls pulling out and turning on their cell phones in a women’s locker room. The older women who were present made darned sure they did not stay that way!

        • Submitted by Rachel Kahler on 04/13/2016 - 11:31 am.

          I like

          how you pretend to be a curmudgeon sometimes, Mr. Million.

          The solution is actually pretty simple. Remove the signs and people grow up. People who have bathroom hangups can either figure it out or wait to get home. Lots of people already wait to get home. There’s nothing worse than those germophobes who insist on using public bathrooms with the assistance of a paper shield to segregate their pristine butts from the toilet seat…and then only halfway flush them so that the toilet water wicks up to the otherwise perfectly fine toilet seat for the next user. Or plug the toilet. Whee! Or, should I say “wee”?

          • Submitted by Jim Million on 04/13/2016 - 01:06 pm.

            Thank you

            for recognizing the pretense. I’m so amused that most here are taking all of this sooo seriously.

            Another true perspective: A close female friend told me once of traveling the somewhat remote reaches of the Mediterranean, where she encountered a most intriguing “rest stop.” The facility, if you will, was a rope tied to a sturdy post at the edge of a steep hill. The protocol, she said, involved grabbing the rope in both hands while extending her bottom over the cliff. She had no consideration of propriety or privacy, just thoughts regarding the strength of her grip and integrity of that rope.

            This has all been so much fun.

            [yes, “wee, wee, wee…all the way home”]

    • Submitted by Maria Jette on 04/12/2016 - 12:44 pm.

      Happy to help!

      Mr. Tester, I’m a lifelong woman, and in answer to your question, it’s OK with me. Never in a long history of using public restrooms have I worried about sharing my merry tinkling sounds with a transgender person. I’m not worried about it now. In fact, I’m not worried about ANY person hearing ANY of my potty sounds in a public restroom. I’m much more concerned about the woman in the next stall broadcasting everybody’s potty sounds via her cellphone!

      Perhaps you’ve never seen the inside of a public restroom designated “Women,” but there are stalls around the toilets, and no urinals. Ergo, any revelation of our external genitalia is confined to the stalls. I suppose a person could leave the door open, exposing their pudenda (or lack thereof) to a passerby of unconfirmed gender, but that might be awkward, as the door could hit the person’s womanly (or manly) knees. I’ve never seen anyone do that; and I’d say anyone doing so would be more worrying to me than a transgendered person using the stall with the door closed and tinkling in private as I do the same.

      Perhaps you could detail precisely what you think women SHOULD mind about “sharing a public restroom with a man who claims to ‘really’ be a woman”–I have yet to hear any panicky conservative legislator explain that.

      • Submitted by Jim Million on 04/13/2016 - 01:19 pm.

        Blame our Grandmothers…

        Some of us are simple products of Edwardian breeding.

        I’m tempted to say something about “real men,” but I shall refrain, leaving that to images of others.

  12. Submitted by Jim Million on 04/12/2016 - 11:52 am.

    By the way

    “Max” is not my nom de fume here. Don’t know him at all.

  13. Submitted by Jeffrey McIntyre on 04/12/2016 - 04:50 pm.

    Shared Restrooms

    I’m more worried about being molested in a public restroom by a GOP politician than I am sharing same with a transgender…..and statistics are on my side.

    • Submitted by Dennis Tester on 04/12/2016 - 06:27 pm.

      We’re not concerned for you

      It’s young women I’m concerned about. Like these girls:

      University of Toronto Dumps Transgender Bathrooms After Peeping Incidents

      http://www.huffingtonpost.ca/2015/10/06/u-of-t-bathrooms-voyeurism_n_8253970.html

      We know why pervy men like this idea.

      • Submitted by Pat Berg on 04/12/2016 - 08:04 pm.

        That’s pretty misleading

        Despite the caps you threw in there, that’s not the title of the article you’re citing. The article is ACTUALLY titled:

        “University Of Toronto Gender-Neutral Bathrooms Reduced After Voyeurism Reports”

      • Submitted by Pat Terry on 04/12/2016 - 11:14 pm.

        Completely False

        The University did not dump transgender bathrooms. Rather, it reduced the number of gender-neutral bathrooms, making them available only for the gender with which people identify. That is, it is specifically preserving transgender bathrooms.

        I’ll give you the benefit of the doubt and will assume that you either did not read carefully or just don’t understand the subject.

  14. Submitted by Ilya Gutman on 04/12/2016 - 08:05 pm.

    Consider this

    It looks like many agree that in order to not violate our Constitution, we should abandon gender segregation and go to all unisex facilities, be it single or multi-use. Now, to make things more realistic, my concern was not about public restrooms which have stalls (which everyone refers to here and has in mind) but locker rooms and shower rooms where everyone is literally naked in the open. And since no documents will be required, there is a high chance that in addition to true transgender people coming there, women will encounter cross-dressers and just “curious” men (who would not risk anything as long as they do not violate any other laws) because peeping laws would not apply. Is this OK?

  15. Submitted by Edward Blaise on 04/13/2016 - 11:56 am.

    Is our legislators learning?

    Our Republican legislators see their brethren in North Carolina and Mississippi enact laws like these and also see the immediate consequences: the loss of hundreds and thousands of jobs as companies flee or refuse to arrive and millions in tourism lost as events cancel.

    And what do our Republican legislators do?

    “Seem like a good idea to us, let’s give it a try”

    Hey boys, we have a Super Bowl, a Final Four and an expanding economy: Are you really that unaware as to try something as ill advised as this?

    Or

    Do jobs and the economy that effect everyone take a back seat to advancing social issues that please 15% of the electorate?

  16. Submitted by Dan Berg on 04/13/2016 - 03:46 pm.

    Are we tolerant enough as a whole?

    So while there are many instances where this topic really isn’t an issue at all since those who have an outward appearance of the gender with which they identify typically wouldn’t raise eyebrows the issue is potentially a bit broader and deeper than that. If we go to strictly unisex, which would make the most sense if we want to be fair, are we alright with that same standard being applied to locker and or changing rooms? Will be be alright with it across all age levels? I don’t have a problem with that but think it is a question that brings the issue into brighter focus than the situation where a person of a different orientation or genetic gender might being using stalls next to each other. The idea of open unisex locker rooms in high schools might be a bridge too far for most people.

    If we aren’t alright with all open locker rooms and restrooms and decide we need to go to individual private facilities there will be a huge expense that will need to be addressed. Since individual private facilities take up much more space per user and existing buildings aren’t going to get any larger we will need to be alright with changing building codes to allow for many fewer fixtures for any given population. Even in new builds providing picture counts that meet current code but are individual private facilities will make restrooms take up a much larger percentage of the space and budget.

    I personally don’t care if we just go to unisex using existing facilities. I wonder though how many people who are supportive of this in theory might balk when the policy applied across the board.

  17. Submitted by Pat Berg on 04/14/2016 - 11:07 am.

    Unpacking the idea

    I’ve been reflecting on the implications of this in locker/shower rooms rather than simply in restrooms. I just want to throw out some scenarios I’ve been thinking about to try and help myself unpack the various issues that may or may not be relevant.

    Let’s say we stick with the idea of single gender locker rooms. Based on some of the comments above, the reason this is preferable is because it will eliminate the risk of a person being leered at by someone who views them in a sexual way.

    At its most basic, lets start by considering a locker room with only women (as assigned at birth) within it. Does this get us around the concern as expressed above?

    Well, not necessarily. As we know, there is a percentage of the population that is attracted to their own gender. And of course, there is no way of determining whether a person has that status by looking at them. So if I am disrobing or showering in a single gender locker room surrounded by others of my own gender, for all I know, someone among those around me may be “leering” at me.

    Of course, as long as they never do anything more than “leer”, I will never know. So was I harmed? And how would I even know? I wouldn’t. So the fact is, not even a single gender locker room is a guarantee against the possibility of myself or a family member being “leered at” by someone else who is legitimately in that locker room.

    Now let’s open it out a notch. Still single gender locker room, but expanded to include those who consider themselves to be that gender even if that was not the gender assigned at birth.

    As has also been pointed out, in many cases, the others in that locker room may never even know the person is transgender. That depends on many factors. So once again, if you’ve been in the same locker room with a transgender person, but you never even knew it, then it’s hard to imagine what “harm” has been done.

    But let’s say it’s a situation where you DO know the person is transgender. I still propose that there’s no inherent harm being done. You have no more idea as to whether that person is attracted to the surrounding people sharing that locker room than you did in the first scenario. Some transgender people are attracted to one gender, some to the other. You can’t tell by looking at them any more than you can by looking at a non-transgender person. That’s just the way it is.

    So I really can’t see any validity to claims of harm in any of the scenarios involving same sex locker rooms.

    That’s where my thoughts stand at this point. Just thought I’d throw it out there.

    • Submitted by John Appelen on 04/14/2016 - 06:05 pm.

      Most Rational

      That is the most rational discussion of this topic I have heard so far. I personally think has to do with what one knows and what one is forced to see.

      Before LGBT folks chose to make their preferences known to the general public and demand that the public accept them as they are, pretty much no one knew if they were showering with a gay man. Therefore unless he was acting inappropriately, no one cared. Now when many of his peers know who turns him on, they may feel more shy in the locker room. (ie kind of like if there was a woman in there)

      As for transgenders, if she self identifies as a woman and still has man parts. I am pretty sure most women would be uncomfortable sharing a shower… And Lord knows the girls would be terrified…

      Now the women commenting here have likely been sheltered since it seems society often gives them stalls in which to do their business. Whereas often the men are asked to just let it all hang out.

      In my latest post I proposed that if this is just a silly Republican topic, then lets get rid of the men’s and women’s signs. (ie coed like Starship Troopers) I mean many people here seem to be saying that intent and parts don’t matter anyway.

      • Submitted by Pat Berg on 04/14/2016 - 09:13 pm.

        That’s a leap

        I don’t know how you got that from what I wrote. My post in no way proposed getting rid of the men’s and women’s signs. That’s a different discussion altogether from what I wrote.

        • Submitted by John Appelen on 04/15/2016 - 07:53 am.

          Ladies

          So Ladies, why would you not want men and our boys in the locker room with you or your daughters? Is it their attraction towards women or their male body parts in plain view?

          Or are you okay with coed bath and locker rooms?

          The reality is that lesbians have an attraction toward women and that pre-change transgender people have the body parts of a man. So if you are against coed rooms, why are you okay with Lesbians / prechange Transgenders in the shower room with you?

          I am very curious.

          • Submitted by Pat Berg on 04/15/2016 - 08:39 am.

            That’s kind of what I was musing on

            “Is it their attraction towards women or their male body parts in plain view?”

            On the first part, I’m proposing that if the person is never made aware of that attraction, then where’s the harm? Because they’d never know.

            As to the second part, I don’t know this for a fact, but I suspect a transgender person who has not opted for surgical correction (for whatever personal reason) is probably not going to be anxious to be showing those body parts that don’t match with their perception of who they truly are. So in that case, I suspect there wouldn’t be a lot of “body parts in plain view” to worry about.

            • Submitted by John Appelen on 04/16/2016 - 07:15 am.

              Awareness

              Now the gays and lesbians have come out into the open, many of their peers in the locker room will be aware of their attraction. For better or worse.

              It seems to me the GOP just wants to meet the transgender issue head on. And from your point it looks like there is no problem putting into law that which makes sense. Use the facilities that match your parts, not your self identification.

              • Submitted by Pat Berg on 04/16/2016 - 08:02 am.

                That doesn’t even make sense

                Your second paragraph, from the second sentence on, makes NO sense to me. And I certainly don’t see how anything I wrote leads to “Use the facilities that match your parts, not your self identification.”

    • Submitted by Ilya Gutman on 04/14/2016 - 08:23 pm.

      There is another scenario that you missed: mischievous boys come into girls locker rooms. They cannot be asked if they are transgender and even if they are asked, they can say that they are since no documentation is required. They can even wear women’s clothing (pants and a T-shirt, for example) taken from their sisters… Is there harm?

      • Submitted by Pat Berg on 04/14/2016 - 10:38 pm.

        I don’t know . . . .

        Is there harm?

        What are they doing? Are they representing themselves as female? Are they otherwise behaving themselves?

        As long as they are behaving themselves, you tell me – is there harm?

        • Submitted by John Appelen on 04/15/2016 - 07:45 am.

          Sounds to me like you are suggesting that coed bathrooms and showers would be acceptable.

          • Submitted by Pat Berg on 04/15/2016 - 08:34 am.

            Is that what I said?

            I was pretty sure I was discussing single gender locker rooms.

            • Submitted by John Appelen on 04/15/2016 - 09:16 am.

              Parts Matter

              That depends on what gender is? If it is a state of mind, then you are correct. However I think many would feel that “parts matter”, especially if walking around naked. Thus the questions I asked above.

              “Now let’s open it out a notch. Still single gender locker room, but expanded to include those who consider themselves to be that gender even if that was not the gender assigned at birth. ” Pat

            • Submitted by Ilya Gutman on 04/15/2016 - 09:29 pm.

              But if you don’t see harm in curious boys coming at will into girls locker rooms, then what sense do single gender locker rooms make?

              • Submitted by Pat Berg on 04/16/2016 - 07:28 am.

                Gender

                It is difficult for me to have this discussion when the moderators don’t post my very benign comments, but I will try again:

                Are said “curious boys” presenting as transgender? That doesn’t mean throwing on a dress and a coat of lipstick before entering the girls’ locker room. That means living as and – for all intents and purposes – *being* female in all other aspects of their daily lives.

                And are they exhibiting good behavior while in the locker room? (“Good behavior” would NOT – for example – include shooting cellphone video over the tops of single occupant stall doors.)

                That seems like a lot to go through for a simply “curious boy” and not much payoff relative to the effort.

                Furthermore, if all those conditions are met, then no one else in the single gender locker room is likely to even be aware that a merely “curious boy” in their midst is satisfying an urge to get a glimpse at some body parts that he could probably see with far less effort on the Internet or at the movies.

                And as far as I can see, nothing in that scenario renders illogical the concept of single gender locker rooms.

                • Submitted by Ilya Gutman on 04/16/2016 - 10:49 am.

                  Regular boys

                  Sorry they didn’t let your comment go… Anyway, by curious boys I mean regular, not transgender ones, who just like to see naked girls – pretty natural for teenage boys and many other males (that is why Heffner is so rich). They will enter the girls locker room under the “transgender” status but no one would dare asking them if they were transgender and no proof is required anyway. Yes, they will be behaving in the locker room – no physical contact or taking pictures, but those things are prohibited there even if women do it; they will just look around. And my point is that if any boy can do it and girls are comfortable with that, then why separate them to begin with?

                  • Submitted by Pat Berg on 04/16/2016 - 03:26 pm.

                    Because . . . .

                    Because, if they are truly transgender (living as a female in all aspects of ther day-to-day lives), then for all intents and purposes, it is still a single gender locker room.

                    It’s not at all the same thing as your “curious boys” scenario.

                • Submitted by Dan Berg on 04/16/2016 - 12:13 pm.

                  Gender definition too narrow and not enforceable

                  Your definition of gender is far too narrow and would require impossible levels of enforcement. If people are able to define their own gender (fine by me) then it is possible for that to be something other than a simple definition of identifying as one of two binary genders and can also shift over time. For such fluid understandings of gender, one where the idea of “gender” has been legally made irrelevant, there can’t be any test or standard developed. Saying that somebody must be “living as” or “identify as” a specific predefined gender is counter to the whole idea being advocated.

                  Even if such definitions were created there would be no way to enforce them. Who would be the arbiter and how would the locker room or bathroom police know if any individual has been given permission? Would we stamp it on identification? The only reason gender specific facilities have worked up until now is that it was fairly obvious who was allowed where and we were alright with not accommodating the minority of the population for whom the broad generalizations didn’t work.

                  • Submitted by Pat Berg on 04/16/2016 - 03:32 pm.

                    So . . . .

                    So as you are presenting it, it seems the only two ways this could go would be either totally gender neutral locker rooms or the other extreme – no more open locker rooms but rather a complete conversion to single individual cubicle facilities?

                    • Submitted by Dan Berg on 04/17/2016 - 09:14 am.

                      Correct

                      It is hard to justify replacing the legal definitions of gender we are getting rid of only to replace them with even more convoluted ones which require a layer of inquiry and enforcement not required before. That leaves those two potential options which makes sense.

                      The trouble with going to single individual facilities is that it will be hugely expensive and result in fewer total facilities available. That leaves completely open, gender neutral facilities as the only workable solution that actually supports the idea of treating people equally regardless of their gender identity.

                      The only other alternate option I can think of is to allow property owners to simply arrange their facilities and have policies as they see fit. Then people can patronize whichever they are most comfortable with. Publicly owned facilities like schools won’t be able to take this route of course.

                    • Submitted by John Appelen on 04/19/2016 - 03:12 pm.

                      Makes Sense to Me

                      Personally I like the Men, Women and Other (Family, Transgender, Transvestite, etc) option.

  18. Submitted by Todd Hintz on 04/18/2016 - 12:37 pm.

    Motivation

    We are Republicans trying to advance this issue across the country? It’s never been a big deal up until now, when suddenly there are initiatives all other the place.

    The answer is pretty simple: it’s an election year.

    If you want to get your base out to vote, don’t concentrate on silly things like jobs, infrastructure improvements, or universal health care. Heck no! Let’s talk about bathrooms and how little Johnny might sneak into the girls’ locker room for a peek. We need clearly defined boundaries so society as we know it doesn’t collapse.

    The intent is to get conservative voters to the polls to beef up their failing numbers. Couple a hot button issue with gerrymandering and voter ID and they may just have a winning strategy to keep them in power for a few more election cycles.

    Of course this strategy could backfire on them, as it did with the constitutional amendment to declare marriage as one woman and one man. (Or, in their words, one man and one woman.) But this time it will be different! This time they learned their lesson and think they’ve picked an issue that polled well with a broader base, so they’re hoping for more support and more votes.

    In the meantime, jobs bills are ignored, Republicans are trying to pare down the broadband initiative that would help rural Minnesota, and we don’t have any comprehensive transportation funding plan. Way to hit those issue that are important to our economy.

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