Consent is a crucial component of privacy that empowers individuals and affirms human dignity. It is consent that permits us to receive and express intimacy. It is consent that regulates our respect for the privacy of others. It is consent that bestows on individuals, rather than society, the power to draw the precise boundaries around their own privacy. —Steven Wilborn
There is nothing more pivotal in the matter of personal privacy than consent. This is true not only in private places like our own dwellings, but in public places as well: change rooms, locker rooms, shelters, public showers, and camp cabins.
Sadly, but perhaps inevitably, these spaces have became a battleground as lawmakers and the public wrestle over competing rights related to sex, gender, privacy, and security. While a significant majority of the public approve generally of protections for transgender individuals, applying these preferences to shared segregated spaces typically marked “women” and “men” have met with significantly less public approval.
An Angus-Reid poll in September 2016 found that while 84 percent of Canadians approve of special treatment for transgenders generally, when faced with a bathroom question to which there were three possible answers: gender-identity-based, “It depends,” or “Biologic sex,” only 41 percent supported full transgender preferences. A Vox-Morning Consult poll of 2,000 U.S. voters similarly found that “although a plurality said they support laws that prohibit discrimination against trans people, they were divided on whether trans people should be able to use the bathroom that aligns with their gender identity.”
In one of the only polls to ask about locker rooms, a Crux-Marist poll found only 27 percent in favor of opening bathroom use. While there is significant variability in poll results, support for transgender facility use is almost always significantly lower than goodwill towards transgender people generally. What accounts for this disparity?
There is good reason to believe the public concern has to do with the right of consent in the matter of bodily privacy, especially for females. This is not a minor consideration. Heidi Hurd has spoken eloquently about the “moral magic” of consent. Consent, she says, is a “capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography.”
Consent Matters Immensely
Why is it that a peeping tom looking into a neighbor’s bedroom window would be justly arrested for invasion of privacy, but when athletes shower together naked no one would think of laying charges? In the former example, the peeping tom may not even get a good glimpse of the nakedness he hopes for, while in the latter the body is viewed completely. One is a criminal invasion, the other a mundane, if awkward occurrence. What is the legal distinction between the two? The answer is simple: consent.
When a person steps into a locker room, change room, shelter, or camp cabin, she or he is consenting to a set of unwritten, but well-understood, guidelines. There is no contract, verbal assent, or signature, but consent is given nonetheless, and it is given the moment the person enters through the door marked “Women” or “Men.” In so doing, they consent not only to remove their clothes, but some of their privacy rights, all in accordance with the meaning of the sign on the door.
In “Privacy Rights,” Adam Moore states, “One of our most cherished rights, a right enshrined in law and notions of common morality, is the right of individuals to control access to bodies, places, and location. Violations of this basic right are seen as some of the most serious of injustices.” Gender-erasure legislation, such as Bill C-16 just passed into law in Canada, constitutes just such a serious injustice as it removes from persons, particularly females, the right of consent concerning their bodily privacy in spaces like change rooms and showers.
Cases of Stripped Rights
So what is the case law on bodily privacy? In Stanley v. Royal Canadian Mounted Police (1987), four female members of the Alberta R.C.M.P. alleged sex discrimination due to a lack of work at lock-ups where the policy was that prisoners “must be guarded by persons of the same sex.” After a lengthy tribunal involving many expert witness, the tribunal agreed that the sex-differential was an important aspect of prisoners’ privacy rights: “If the general interest in personal privacy is an important one to us, the specific interest in not being viewed while in states of undress and using the toilet by strangers of the opposite sex must be said to be of particular importance.”
Citing York v. Story (1963) it continues, “in respect of the interest in not being viewed in states of undress by strangers of the opposite sex, ‘We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one’s unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self- respect and personal dignity’.”
While privacy rights of male prisoners have not always fared as well in the United States, Karoline Jackson says,
female inmates’ claims of invasions of privacy appear to have been taken more seriously with somewhat favorable results. In Forts v. Ward, ‘female prisoners filed suit protesting the placement of male officers in housing areas where the female prisoners could be viewed while partially or completely undressed. The female inmates claimed that this placement deprived them of their constitutionally guaranteed right to privacy. In contrast to the arguments challenging the existence of male inmates’ privacy rights, the state in this situation did not even dispute that the female inmates retained a constitutional right to privacy while incarcerated. Similarly, in Rushing v. Wayne County, the female inmate’s right to privacy was not even contested by the state. In Lee v. Downs the court upheld a jury verdict for a female inmate who had been forced to disrobe in the presence of male guards. In Torres v. Wisconsin Department of Health & Social Services, the Seventh Circuit concluded that a state could exclude male guards from its female prisons in order to promote the female prisoners’ rehabilitation without violating the guards’ right to equal employment opportunities.
If courts have generally upheld the privacy rights of (especially female) prisoners, whose personal rights are significantly curtailed, how much more should they protect the rights of free citizens in public shared spaces?
Courts Recognize Sexes Have Reasons for Freely Separating
Another area the gender wars have played out is at women’s-only gyms. In Stopps v. Just Ladies Fitness (2006), a human rights case in British Columbia, the tribunal dismissed a male’s complaint of sexual discrimination when he was not permitted to join Just Ladies Fitness. The tribunal’s ruling borrowed heavily from a similar U.S. case, LivingWell v. Human Relations Com’n (1992).
The commission argued these women had no reasonable basis to feel embarrassed because society does not find it objectionable to exercise with the opposite sex. In answering this, the court said:
… Privacy interests are not determined by the lowest common denominator of modesty that society considers appropriate. What is determinative is whether a reasonable person would find that person’s claimed privacy interest legitimate and sincere, even though not commonly held. Nothing in the record supports, nor does the Commission seriously challenge that these women do not sincerely hold these beliefs or that a reasonable person would not find these beliefs legitimate.
This is highly significant, as both American and Canadian courts have recognized sex-segregation boundaries of bodily privacy as legitimate, even when fully clothed, and even when many men and women wouldn’t share the same need for this level of privacy.
The rulings in Story, Stopps, and Livingwell were all cemented by the courts’ recognition that opposite-sex privacy concerns were not merely about propriety or dignity, but that significant negative effects would occur in removing privacy. Jennifer Weiser comments on Torres v. Wisconsin, “The Seventh Circuit…acknowledge[ed] that it is socially accepted wisdom that ‘the presence of unrelated males in living spaces where intimate bodily functions take place is a cause of stress to females.’” Both Story and another police-privacy case in Canada (R v. Hornick, 2002) cite R v. Golden (2001) that women and other minority groups experience privacy violations as akin to “visual rape.”
The recent surge in upskirt voyeurism has also tested bodily privacy law. In 2010, a police sting caught Michael Robertson on the MBTA Green Line in Boston using his phone to record under a woman’s skirt. The Massachusetts Supreme Judicial Court dismissed the case, saying the female passenger was neither partially nude nor in a place with a reasonable expectation of privacy, so there was no crime under existing law.
Although the state legislature immediately strengthened the law, Jeffrey Marvin argues that the dismissal was unnecessary even under the existing laws at the time. “When it comes to protecting personal privacy rights from a voyeur’s sordid intrusion, enabling the expectation of privacy to remain attached to the victim’s person–not their physical location–is a critical approach that states must embrace.”
Principles of Privacy
A fuller survey of privacy-related cases in Canada and the United States establishes that courts have ruled with considerable consistency on the matter of bodily privacy and consent. We may enumerate four principles of bodily privacy law: Sex differential, Effect, Reasonableness, and Person-centricity.
Sex Differential: The law has always treated sex as a significant differential aspect of privacy. If one has consented to bare oneself to females, being viewed by males is an invasion (Hornick). Even in situations where privacy rights are severely curtailed, female prisoners have often had the right to not be viewed by males or vice-versa.
Effects: One of the reasons courts have not always upheld equality in sex discrimination cases (Story, Stopps) is because of the variable effects that loss of privacy has on different groups. Females may be particularly susceptible to the detrimental effects of bodily privacy invasion due to past experiences of harassment or sexual assault.
Reasonableness: LivingWell establishes that for a privacy right to be protected it does not have to be a universal desire or expectation, only a reasonable one. Consent and bodily privacy are serious enough matters that they ought never to be reduced to a “lowest common denominator” approach.
Person-centricity: Finally, Marvin reminds us in his review of Robertson that even in public places there is a reasonable right of privacy that cannot be divorced from one’s body and person. It is not the place that is protected, it is the person(s) within the place.
Given these four principles, it would seem beyond dispute that the law upholds the right of the consent of persons, and especially women, in bodily privacy in spaces such as change rooms, locker rooms, shelters, public showers, and camp cabins.
More specifically, when a woman enters a change room labeled “women” it is with the expectation that what she will encounter behind those doors is female anatomy. By pushing through that door with that particular sign, she is signaling her consent to be willing to be exposed to breasts and vaginas, among other aspects of the female form. She further consents to baring her body to the eyes of other women, although in this matter she contains a greater amount of control. But until recently there has been no question that her consent does not extend into willingness to be exposed to penises and other aspects of the male form, nor to be viewed in a state of undress by males.
How do transgender policies and legislation, then, interact with a woman’s consent? Effectively, they strip her altogether, leaving her naked, without rights or power under the law to protect her personal dignity or voice. The sign to the woman’s locker room may still say the same thing, but it no longer has an objective referent. On account of the loss of referent, it no longer communicates anything to her. Because it cannot communicate, she is incapable of consenting.
Erecting a Glass Wall
I will anticipate a rebuttal by suggesting that many supporters of gender policies may tentatively agree with these conclusions up until these last paragraphs. However, they may reply that there is also considerable case law that treats transsexuals and transgender individuals as their target or chosen gender. Thus, all the points that apply to women may be taken as true and would apply also to transwomen. Especially if there are greater privacy rights afforded to women on account of their vulnerability and victimization in society by males, how much more for transwomen, who suffer even greater stress and victimization?
While it is beyond the limited scope of this article to engage with the truth claim “transwomen are women,” I do want to point out some insuperable difficulties the above view has in relation to a wide-ranging policy on privacy. First, it is hard to fathom under this view why sex or gender segregation would be of “particular importance” (Stanley). My personal experience in conversation with many gender policy advocates, including the Senate of Canada Government Liason Grant Mitchell, is that sex or gender segregation is not important.
While I have never yet heard a gender-policy advocate articulate a strong preference for sex or gender segregation on the basis of privacy, it may be that some have. But on what potential grounds? If there is no objective criteria for “men” or “women,” it becomes difficult to come up with reasoning about protecting the privacy of one against the other.
To venture a little further down this cul-de-sac, we anticipate the standard reply that gender is based on one’s self-identification. But for whatever value self-identification may have in other matters relating to gender rights, it has none relative to bodily privacy rights. Bodily privacy is related de facto to the body. It reaches absurdity to imagine needing a locker room to safely undress one’s brain, ego, or personality.
Secondly, privacy concerns take into account and legitimize the effects of privacy loss. R. v. Golden states that privacy loss can be “humiliating,” “degrading,” “demeaning,” “upsetting,” devastating,” or even be experienced as “visual rape.” Gender policy proponents are happy to claim these effects on behalf of transwomen should they have to use a male space. But if a female should claim these effects if bio-male transwomen were in their space, the effects are seen as illegitimate.
As soon as one says that another’s concerns based on effects are illegitimate, however, the efficacy of consent is severely diminished. For these and perhaps other reasons, one rarely hears a strong emphasis on consent about applying gender-identity legislation to women’s spaces.
Wide, But Not Unwieldy Consent
This leads us to one last anticipated rebuttal: in order to establish the right of consent with regard to bodily privacy for women who are uncomfortable with male genitalia in their space, we have removed consent from transwomen who may have similar consent concerns. The principle, some may say, is thus unequally applied and despite the legal evidence the argument fails.
On the contrary, however, we uphold as much as possible the consent of all, including transgender individuals. However, a careful reading of the cases and rulings does not establish consent as an all-pervasive power. It functions as the strongest personal aspect of bodily privacy law in a particular context in relation to other rights. In prison cases, male prisoners have been accorded sometimes more, sometimes less, privacy as courts weighed other concerns and rights: the employment rights of guards, the need for prison safety, etc. In a transgender rights case in Ontario (Vanderputten v. Sedayco, 2012) the tribunal said of facility access, “such issues may require a balancing and reconciling of various rights and interests.” Simply put, personal rights don’t occur in a vacuum.
If the only consideration was consent in the matter of bodily privacy, the policy everywhere would be banks of individual, fully enclosed, and locked unisex spaces. Each pool and sports facility would have 30 single-user change rooms with showers. Every shelter would have individual rooms, like a hotel. The idea is not undesirable; it is impractical.
Some people, particularly the sexually abused, will find it emotionally stressful to undress with anyone, regardless of sex or gender. The physically disabled or disfigured may face similar effects. Younger people, who have yet to progress through pubertal changes, may experience stress or embarrassment changing with older members of the same sex. Some people may feel uncomfortable if they knew they were unclothed with members of the same sex who were same-sex attracted. The privacy concerns of these individuals are not invalid, but segregation in these spaces is required on the basis of practicality as well as privacy.
Here we apply the principle of person-centricity. The sex segregation of locker rooms and showers is not ultimately attached to the rooms themselves. Sex segregation is simply the most useful category in protecting individual consent. Any individual with a legitimate reason ought to be allowed to use a separate enclosed space if it is at all feasible. We uphold their right of consent as much as possible. In the same way we uphold the right of consent for transgender individuals as well.
But as rights do not occur in a vacuum, they must be weighed against other concerns–usually other’s rights. Transwomen represent 0.3 percent or perhaps 0.4 percent of the population. Even if we imagine that only one-third of females would feel significant discomfort with biological males in their segregated spaces, that is still 17 percent of the population, some 42 times larger than the transwoman population. If we agree that consent in bodily privacy is important, it stands to reason we should be against policies that remove the right of consent from a much larger group in order to grant consent to a much smaller group.
Fortunately, there is a solution that upholds the consent of both groups. Policies dealing with privacy-related segregation should work towards ensuring that facilities have third spaces that are fully enclosed, lockable, and unisex. In many cases these are already present in the form of disabled or family spaces. Governments may need to pressure facilities to provide more if transgender individuals who have not yet had full sex-reassignment surgery should require them. If consent-privacy is truly a concern for gender policy advocates, they should embrace this solution. Anything else spells the death of consent, and with it, the death of privacy.