Judge Emasculates Transgenders’ Restroom Rights
WASHINGTON, D.C. (August 22, 2016): A federal judge, Reed O’Connor of Fort Worth, Texas, has emasculated the federal rules establishing the right of persons with a penis to use restrooms set aside for women and girls simply because they claim to believe they are female, enjoining the enforcement of such rules throughout the country.
He did so, he said, for two reasons: (1) the government failed to provide the public with the required opportunity to comment on the rules and their possible illegality before they were promulgated, and (2) the rules “contradict the existing legislative and regulatory texts.”
This is an important ruling, says public interest law professor John Banzhaf, not only because it struck down a naked and illegal exercise of federal power, but also because much the same reasoning may well apply in other areas.
For example, the federal rules – technically called “guidance” – which are requiring colleges to crack down on alleged rapists, and reportedly to often infringe upon the male students’ Due Process rights in the process, were likewise passed in such a way that the public was precluded from commenting.
Ordinarily, before the federal government can issue a rule requiring some person or entity to do something, it must give the public both notice and an opportunity to comment.
Comments may, among other things, argue that the proposed rules are illegal, and the agency is then required to respond to those criticisms before the rule goes into effect.
But in deciding that all persons with a penis who claim to be female must be permitted to use female restrooms, as well as in deciding that colleges have very detailed obligations regarding the investigation of alleged rapes on campus, the government denied the public this vital opportunity. says Banzhaf.
The court also rules that the “plain language” of the statute, which prohibited discrimination based upon “sex,” is not ambiguous, and that “sex” does not include whatever a person may think or believe at any given time is his or her proper gender, regardless of their anatomy.
Indeed, it seems very doubtful that when Congress passed the law prohibiting discrimination based upon sex, under which schools are permitted to maintain separate restrooms for males and females, that it intended that a person with a penis would ever be classified as a “female” or “woman,” says Banzhaf.
Title IX requires that “facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
“It cannot be disputed that the plain meaning of the term sex” in that law “meant the biological and anatomical differences between male and female students as determined at their birth,” the judge wrote.
“Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex.”
Although little noted, the federal rule applied not only to restrooms, where there is some privacy provided by separate toilet stalls, but also to group showers, locker rooms, etc. where users are routinely exposed to other naked people. Many people are obviously concerned that an adult with a penis would, under the rules, be entitled to shower with women, much less girls, says Banzhaf.