Houston Is It Discrimination, How About Transvestites, Whose Rights Trump Others?

WASHINGTON, D.C. (November 4, 2015): A Houston law designed to extend a broad spectrum of rights to gays and transgender people was overwhelmingly rejected by voters, but apparently primarily for only one reason, says public interest law professor John Banzhaf who has generally supported these rights.

It was clear that the major objection was focused on what was called the “bathroom issue,” since the ordinance would permit males in female restrooms if they simply claimed they felt like women.

Houston Votes Overwhelmingly - No Men In Women's Restrooms

This is similar to a new federal ruling that an anatomical male student must be permitted to shower and change clothing with high school girls because he claims to feel like a female – one which raises some novel legal as well as social issues, says Banzhaf, who has won over 100 legal actions against illegal discrimination, and supported prohibiting illegal discrimination based upon both sexual orientation and sexual identity at his own university.

Houston’s bathroom issues – Transgender student may not even be suffering discrimination

First, said Banzhaf, the transgender student may not even be suffering discrimination in the traditional sense of being denied opportunities because of false stereotypes, as when Blacks or women are excluded solely because of their race or gender.   Indeed, the alleged “injuries,” such as lack of locker room “bonding” or “comradery,” are the same as those “suffered” by the occasional female student who plays on a male football team but, because of gender, must shower and change clothing in a separate area.

Rather, the federal government is insisting that a special accommodation, which many feel infringes on the privacy of female students, be made.  Showering and changing facilities reserved for students with vaginas but not with penises must suddenly be open to any student with a penis solely because of that student’s internal feelings.  Presumably, an adult coach of a girls’ team who is anatomically male, but lives as a woman, would also be permitted access to naked girls while they are showering or chancing clothing.

Second, if special accommodations have to be made for anatomical males with a mental compulsion to act like females, why shouldn’t the same principle and protections apply to transvestites – which Wikipedia notes include “heterosexual males (that is, male-bodied, male-identified, gynephilic persons) who wear traditionally feminine clothing.”  Certainly males so attired would feel awkward in a male locker room, and might even be subject to the same types of physical violence that transgender females face.

Yet because their strong compulsion to dress and act like women does not result from any discordance about their sexual identity, they do not now enjoy the same legal rights and privileges as transgender females. and could not legally shower and change with female students.

One may reasonably ask why this novel special accommodation – which arguably intrudes on the privacy of many female students – should be extended to anatomical male students or even coaches who have a compulsion to act and appear like women, but not to anatomical male students who may feel a compulsion which is just as strong to dress like women although they still think of themselves as male.

Third, although it has sometimes been suggested that anatomical males seeking access to female restrooms as transgender persons for perverted or improper sexual purposes does not happen, there have been a significant number of  reports in the media of exactly such situations occurring.  This appears to have been the major concern of Houstan voters, and led to the resounding defeat of the entire ordinance.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf