Discrimination Is Legitimate When the Distinction Is Relevant

Is it wrong to discriminate against biological males by denying them access to women’s bathrooms? When I was asked about this today, I pointed to a comment I wrote years ago on the blog:

When differences are relevant, it's not an invalid systemic discrimination. For example, if two guys walk into a bar and the bartender says, “I can't serve people like you—get out!” Is that wrong? Illegal? One can’t say until one knows why the discrimination is occurring. If the bartender is saying “get out” because the guy isn’t white, then that’s invalid. Why? Because a person’s race is completely irrelevant to the issue of drinking at a bar. But what if he says “get out” because the guy is only fifteen? In that case, the age is relevant because drinking affects youth differently, they don't have the developmental ability to handle the impairment, etc. Yes, we systemically discriminate against fifteen-year-olds by law because of differences between them and adults, but it’s not invalid to do so.

I wrote that in 2008 as part of a discussion about same-sex marriage. My overall point in the comment was that just as we separate men from women in bathrooms because the differences between the sexes are relevant to bathrooms, so we ought to support opposite-sex marriage because the differences are likewise relevant to marriage. The example of the bathroom was meant to demonstrate the legitimacy of government discrimination according to sex when it comes to marriage (unlike discrimination according to race, which is irrelevant to marriage).

But instead of following the accepted bathroom logic forward to opposite-sex marriage, our society chose same-sex marriage and pushed its distinction-denying logic back to the bathrooms (as I predicted here and explained here). This is where we find ourselves now.

Is your biological sex related to what goes on in bathrooms and locker rooms, particularly when it occurs in front of other people? Yes. But so is biological sex related to marriage. As a society, we denied that was the case with marriage, and now we’re just following that reasoning to its logical, absurd conclusion.

Comments

[John B. Moore]

Yes, and it's the same with religious freedom. We wouldn't tolerate human sacrifice even if it was somebody's deeply held religious belief. There are definite limits to society's tolerance.

[Phillip A]

Is your biological sex related to what goes on in bathrooms and locker rooms, particularly when it occurs in front of other people? Yes.

I haven't been in a women's restroom in a while, but they still have stalls, right? And peeping in said stalls is still very much illegal regardless of gender, right? So why do post-Obergefell Republican legislatures suddenly feel inspired to lay out a statutory potty policy, even though transgender people have been relieving themselves without incident for a very long time?

And I'm still trying to figure out how these laws will be enforced - will it be like those X-ray backscatter machines at the airport, but instead of hiding your genitals, it shows only your genitals? Will police officers be authorized to put a hand down your trousers on a reasonable suspicion, or will they need probable cause?

[Phillip A]

John B. Moore:

We wouldn't tolerate human sacrifice even if it was somebody's deeply held religious belief.

But is the government's interest in preventing human sacrifice sufficiently "compelling"? Only Justice Kennedy knows...

[DR84]

"Yes, and it's the same with religious freedom. We wouldn't tolerate human sacrifice even if it was somebody's deeply held religious belief. There are definite limits to society's tolerance."

It is interesting you brought that up, because it seems more and more clear that society will not tolerate religious groups that do not celebrate ss"m" or believe a biological man can be a woman any more than we would tolerate a religious group that practiced human sacrificed. In fact, it will not surprise me if the human sacrifice is an often referenced example of a religious practice that cannot be tolerated or sanctioned because it harms people, so Christians cannot really complain when they face penalties and sanctions for religious practices that "harm" people.

[B.E. Hunt]

@Phillip A

Not only has it been a while since you've been in a women's restroom, but apparently it's been a while since you've been 8 years old as well.

Both of my sons, who have very different personalities, would have significant emotional responses have a women, or someone who 'identifies' as a woman, be in a stall next to them in the restroom they are using.

Now, apparently, the rights of my children are less important than the rights of gender-bending adults. Of course, that's why we can also kill them before they become inconvenient as well. Back to the bathrooms. Phillip, can you tell me why the emotional well being of my children, or my own emotional well being for that matter, is less important than the emotional well being of the transgendered?

[RobertNotBob]

"We wouldn't tolerate human sacrifice even if it was somebody's deeply held religious belief."

Not only do we tolerate it, we give it the protection of the law. Try walking by a "clinic" in Canada with a pro-life sign and see who ends up in jail.

[RagTime]

"it will not surprise me if the human sacrifice is an often referenced example of a religious practice that cannot be tolerated or sanctioned because it harms people, so Christians cannot really complain when they face penalties and sanctions for religious practices that "harm" people."

This is a curious comment. Conservative Christians are as free to worship, marry, decide who to invite as members, as any other faith. Look at the extremists at Westboro Baptist. They're universally revilved, but they're perfectly free to protest funerals and worship as they see fit. I'm not saying most conservative Christians are like Westboro, but I just don't see how a congregation that preaches against SSM and transgenderism can face "penalties and sanctions" anywhere in the U.S.

If you're saying that public opinion will "shun" and try to marginalize such a congregation, that's another issue about how societies work.

[KWM]

Phillip A,

I haven't been in a women's restroom in a while, but they still have stalls, right? And peeping in said stalls is still very much illegal regardless of gender, right?

Do you think it should be illegal? I don’t know why you would. What exactly would one expect to see peeping in? I can’t imagine much. Women pee sitting down last time I checked. In any event, it may or may not make the woman being peeped on uncomfortable. It’s hard to say. I’m not convinced that anyone’s comfort level should be a concern here anyway. As long as no one is physically harmed – we have laws against that.

And I'm still trying to figure out how these laws will be enforced

Exactly. It’s just like peeping. Will we have some sort of anti-peeping alarm that sounds when someone peeps or something?

Bunch of prudes.

[Make Fascism Great Again, 2016]

Philip,

I haven't been in a women's restroom in a while, but they still have stalls, right?

If your argument is that stalls should be sufficient privacy then there is no need for any gendered bathrooms. But hardly anyone thinks that stalls provide sufficient privacy. Your taking a far more radical stance than any transgender activist that I've read or heard before.

We are also talking about locker rooms where there is no privacy when changing.

And peeping in said stalls is still very much illegal regardless of gender, right?

By that logic, no liberal should object to gun ownership, since murder is still very much illegal, right?

So why do post-Obergefell Republican legislatures suddenly feel inspired to lay out a statutory potty policy, even though transgender people have been relieving themselves without incident for a very long time?

You have the narrative backwards. It's transgender people that are pushing for access to bathrooms contrary to their birth gender. If they already have access to those bathrooms, as you suggest, then why are they demanding access to their preferred gender bathrooms anyway?

And I'm still trying to figure out how these laws will be enforced - will it be like those X-ray backscatter machines at the airport, but instead of hiding your genitals, it shows only your genitals?

Wow. Do you even realize the level of your sophistry?

Two things the laws will do: (1) provide a deterrent to transgender persons attempting to access the wrong bathroom and (2) provide punishment to transgendered persons who are caught using the wrong bathroom.

Will police officers be authorized to put a hand down your trousers on a reasonable suspicion, or will they need probable cause?

There is no need since 98% of transgendered people are rather obvious.

[Make Fascism Great Again, 2016]

Phillip,

But is the government's interest in preventing human sacrifice sufficiently "compelling"? Only Justice Kennedy knows...

So you don't think the government needs compelling interest in order to deny freedom of religion? Wow, you're quite the extremist. By your logic there is no need for gendered bathrooms, so long as there are stalls. There is no need for ANY gun control laws, so long as murder is illegal. And the government needs no reason to deny freedom of religion... Good luck convincing the rest of society of your extremism.

[Phillip A]

There is no need since 98% of transgendered people are rather obvious.

Yeah, I don't see how that could possibly go wrong. "But officer, it was obvious!"

[Phillip A]

And also, the question still remains. Reasonable suspicion, probable cause, what?

[Matt]

It is unbelievable the lengths at which people will go to avoid reconsidering their worldview. When the worldview bumps up to the obvious differences between genders in the use of bathrooms, the bathrooms go because they would rather give up privacy in the bathroom than reconsider their worldview.

Much of this is due to the secularization in America. More and more our country adopts an atheistic approach to public life, and on atheism there are no objective moral values or duties. For that reason, there simply aren't objective basis for making rational distinctions.

I think this also has an implication for illicit drug use. Currently drug use is illegal because of the danger it poses to society, but if there are no objective moral values and duties then why not allow free people to poison themselves with damaging drugs? There is no basis for prohibiting even self-destructive behaviors.

[dave]

Can we assume they will begin locking-up biologically female transvestites with the male prison population?

[James Archbold]

"We wouldn't tolerate human sacrifice even if it was somebody's deeply held religious belief."

Seems we celebrate 'human sacrifice' every Easter , complete with those cute chocolate bunnies.

[Chris Cooper]

Phillip A:
"I haven't been in a women's restroom in a while, but they still have stalls, right? And peeping in said stalls is still very much illegal regardless of gender, right?"

Of course, criminal AWLAYS obey the law, right? Reminds me of the Gunfree zone signs.