‘Transgender’ Needs A Legal Definition Right Now Or Women Will Get Hurt

‘Transgender’ Needs A Legal Definition Right Now Or Women Will Get Hurt

A naked woman in a locker room or shower deserves to know that the transgender woman in there with her really is a transgender woman.
David Marcus
By

Throughout the recent debates regarding which bathroom transgendered people should use, trans advocates have issued one constant refrain. They have insisted that the idea anyone would use the law to dress as a woman and invade women’s private spaces is a myth. Last November, Richard Rodriguez was arrested for dressing as a woman and peeking in stalls in the women’s room at Virginia’s Potomac Mills Mall. This was no myth. This was all too real.

In the wake of this arrest and others like it, we must examine whether laws like Charlotte, North Carolina’s non-discrimination ordinance allowing trans women in the women’s room would legalize these kinds of peeping activities. One thing is clear: in the Potomac Mills incident, Rodriguez’s use of a camera to film women would be illegal regardless of his gender. But would trans bathroom laws allow him access to bathrooms and locker rooms provided he was not filming? The answer is at best murky.

In a Twitter exchange with me, Richard Yeleson, an editor at Dissent magazine, said:

Yeleson is referring to the much-maligned North Carolina law that effectively overruled Charlotte’s decision on trans bathroom use.  The suggestion here is that Charlotte’s law never intended to allow someone like Rodriguez to put on a dress and enter women’s facilities. The “class of people” it refers to is transgendered people, and Yeleson says Rodriguez is not transgender. But how does he know that? Furthermore, if Rodriguez, or a predator like him, say he is trans, how can they be proven not to be?

Many Americans, including me, do not believe a person born as a man can be or become a woman. But it is clear that some states and localities in our country have chosen to accept that concept as real. Thus it is absolutely necessary that our society and legal system devise a definition for transgender. Thus far, that definition seems to be “people are transgender if they say they are.” This is not good enough, as clearly Rodriguez and his ilk could use such a definition to defend themselves.

A major reason trans advocates prefer such a loose and all-encompassing definition of transgender is that the trans movement has developed several non-binary genders. Therefore, any attempt to strictly define transgender in terms of men and women itself denies the gender identity of these non-gender-conforming people.

But if we are to keep men who want to peep from using these laws as a shield, we need a way to define who is and who is not a woman. There are a few places we can look for guidance on this.

What Women’s Colleges Do

Women’s colleges face a unique challenge in dealing with trans applicants and students. Since their very existence is based on the idea of only admitting women, they must define what a woman is. At the times when these institutions were created, there wasn’t much debate about that definition, but now there certainly is.

Different schools have taken different approaches, with almost all of them expressing the goal of including trans women. Mount Holyoke, for example, hews closest to the standard definition of gender identity trans advocates support. The school’s admission guidelines regarding gender are as follows:

The following academically qualified students can apply for admission consideration:

Biologically born female; identifies as a woman

Biologically born female; identifies as a man

Biologically born female; identifies as other/they/ze

Biologically born female; does not identify as either woman or man

Biologically born male; identifies as woman

Biologically born male; identifies as other/they/ze and when “other/they” identity includes woman

Biologically born with both male and female anatomy (Intersex); identifies as a woman

The following academically qualified students cannot apply for admission consideration:

Biologically born male; identifies as man

So in practice Mount Holyoke really isn’t a “woman’s college” anymore. It’s a college that will admit anyone except cis men.

Barnard takes a different approach. It “accepts applications from those who consistently live and identify as women.” So, for example, a person born a woman who identifies as a man may apply to Mount Holyoke, but not to Barnard. But perhaps more important is Barnard’s use of the phrase “consistently live and identify.” Unlike Mount Holyoke, which simply accepts that anyone claiming to be a woman is (the standard trans advocate position), Barnard requires proof—not a lot of proof, but proof nonetheless.

Trans Laws Are Lawsuit Heaven

This is an important distinction, because while laws such as the non-discrimination ordinance in Charlotte often exclude people who are not transgender from using bathrooms or locker rooms that do not correspond to their sex, they do not tend to provide any test as to whether a person is in fact transgender.

Clearly, this puts an unfair burden on business owners.

This is a problem because if a gym owner, for example, gets a complaint from women that a man such as the one arrested in Virginia doesn’t belong in their locker room, that owner has no guidance in determining whether to exclude them from access. If they do exclude access and it turns out they are wrong and the person is transgender, they are legally liable. Clearly, this puts an unfair burden on such business owners.

The Charlotte ordinance allows business owners to call the police and file a trespassing charge against a person who falsely claims to be transgender. But, again, no definition of transgender is given. How on earth can a beat cop in Charlotte be expected to decide who really is or isn’t a woman when even Mount Holyoke and Barnard can’t agree on that point?

Complications for Set-Aside Programs

Many states and localities require that a certain percentage of contractors or subcontractors on a funded project must be women-owned businesses. This again, is a situation in which what used to be an easy determination becomes complicated. But it is not only complicated in terms of defining who is and is not transgender, it’s complicated in terms of the intent of these laws.

Does a business owned by a man who transitions suddenly become a woman-owned business for set-aside purposes?

Government sets aside a certain percentage of contracts for women because some believe (rightly or wrongly) that men enjoy systemic advantages in certain businesses. But what happens when a man has enjoyed those advantages for 10 or 20 years of his career and then transitions into being a woman? That person would have the privileged resume of a man while simultaneously taking advantage of programs meant to level the playing field for women.

Does a business owned by a man who transitions suddenly become a woman-owned business for set-aside purposes? Clearly at the time these programs were put in place nobody was considering this question. But what do we do about it now? Are all women women, including a well-established man who transitions? Or does woman in this case refer to a person who has faced the systemic disadvantages the program is meant to compensate for?

Which Kids Are Really Trans?

The one area where even trans advocates concede the need for definition is in the treatment of gender-dysphoric children. The preferred method for determining if a child really is trans is to ask if his or her gender identity is “consistent, persistent, and insistent.” Obviously, this is a loose and subjective framework, and many balk at the notion that a six-year-old can really understand his or her sex at all. But at least it is a framework, one that in some ways mirrors Barnard’s standards for determining who is a woman.

As is so often the case in our society, women have been the least of anyone’s concern in rushing to open their private spaces to transgendered people. Their concerns about safety and modesty are consistently mocked. Those who question these laws are called bigots. But a naked woman in a locker room or shower deserves to know that the trans woman in there with her really is a trans woman. If governments are going to compel women to share these spaces, they must create a better standard and definition than “she’s a woman because she says so.”

David Marcus is a senior contributor to the Federalist and the Artistic Director of Blue Box World, a Brooklyn based theater project. Follow him on Twitter, @BlueBoxDave.

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