Henry Ford said:
Black Box said:
Henry Ford said:
We use gender because it's actually what we're talking about. We don't actually care if someone is genetically male or female, we just don't want to see a penis in the girls' room. But that's because we think it's icky. And that's a stupid reason to create a massive societal "rule." If someone who'd had gender reassignment surgery and had been living as a woman without a penis for 30 years got up from the table at a restaurant, kissed her husband, said she'd be right back and used the men's room, we'd think that was weird, too.
So how do we judge gender in a legal sense?
Honestly, we usually don't. Unless it's one of these cases. In which case, it usually comes down to the person... wait for it... living as a particular gender. Like using those restrooms and things.
Right, or wearing a wig (check), wearing a dress (check), appearing to have an eating disorder (check...I kid, I kid). She clearly has the freedom and ability to live as a particular gender with no issues for
some aspects of her life. But what about in
all areas of her life?
She has been prevented from living as her chosen gender because she has boy parts and not girl parts. This is either by choice or because of the 1 year waiting period.
Or because she is 17. At any rate, she isn't being prevented.
She has been prevented from living as her chosen gender because she cannot use the girls' locker room at school.
No - no, no, no. SHE is doing just fine. The school is letting her use the locker room. Her rights are kicking ### and taking names here.
This is because her rights run afoul of her school mate's right to privacy (or, more specifically, the right of the school not to be exposed to any right to privacy lawsuits).
Again - she's winning with the school. It's those 150 other kids who are complaining.
Let's say that she still has a penis by choice. That seems to indicate that living as her chosen gender isn't an all or nothing proposition for her. So maybe we judge that because of this, the other girls' rights trump hers, and she is denied access to the changing room.
Or maybe we judge that her rights are reasonably protected, and the girls who don't like it can continue to whine, but they don't really have a legally cognizable claim.
But let's say that she still has a penis because of the one year waiting period. In this case, legally speaking, there is a good reason (medically? ethically?) for restricting her right to having girl parts. So maybe in this case, the right to privacy can trump her right to the changing room (as there is precedent for restricting these rights for good reason).
Maybe. But I think that's a pretty tough case to make. Again - whether the school has a rational basis for what it's doing is the question here. And the school has a rational basis for allowing this based on its desire to avoid litigation. Schools used to do okay coming in on the other side of that decision. Last couple years, schools denying use of bathrooms to transgender students are getting shellacked. See links below.
So when her right to live as a particular gender runs afoul of the right to other people's rights (in this case, the right to privacy), maybe we draw a line there? Seems like a simple, bright line test to me.
Or maybe, when other people's right to avoid having a penis/###### in the locker room runs afoul of Title IX, draw the line there. Link. Link.