Many Sources of sexual identity Protection Remain; Including “Reasonable Accommodation”
WASHINGTON, D.C. (November 4, 2017): If residents in Massachusetts vote on Tuesday to repeal an existing law which bans discrimination based upon sexual identity, and which permits anyone who claims to be transgender to use a restroom. shower, or locker room reserved for people with different genitals, it will not mean – as many are apparently claiming – that transgender people will have no protection, says public interest law professor John Banzhaf.
Professor Banzhaf has opposed discrimination based upon sexual orientation and sexual identity, and won over 100 discrimination cases. He cites several reasons for his statement.
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First, such a repeal by referendum would not prohibit - and might very well encourage - cities, counties, towns, and other local jurisdictions to pass local ordinances providing appropriate protection for people who are transgender. Moreover, such a repeal would leave in place any such laws which are already on the books, and could easily encourage local legislators to strengthen these laws if desired.
Second, many colleges and universities already provide protection against discrimination based upon sexual identity, and these are likely remain in place, and could even be strengthened.
For example, the UMass President, and the chancellors of the five UMass campuses, have all pledged that UMass, regardless of the outcome of the ballot question, is committed "to maintaining inclusive campus environments" and the school's current policy "assures that all members of our campus communities can choose a restroom or locker room consistent with their gender identity."
Third, traditionally the determination of which restroom, shower, or locker room facility would be used by which student was determined at a local level by the various school districts and their boards, and/or by each individual school. That is unlikely to change, and the repeal of the current law would not require any new policies.
Fourth, the policies already in place by many corporations in Massachusetts to protect against sexual identity discrimination would not be affected by the referendum, and many large corporations not only already have such policies in place but also feel strongly about the issue. For example, 56 major U.S. corporations have just issued a statement to President Donald Trump is support of transgender rights.
Moreover, even if the existing Massachusetts law is repealed, there is nothing preventing the state's legislators from passing another law providing protection for transgender people if it is significantly different from the one rejected by voters.
Such a law, for example, might provide a somewhat different level of legal protection, especially regarding the flashpoint elephant-in-the-room issue related to sexual privacy.
These concerns are not strictly hypothetical. For example, in Milton an anatomical male demanded a Brazilian waxing around his genitals from a female-oriented beauty parlor with female staff, and later filed a formal legal discrimination complaint when his request was denied.
One can only wonder what would happen if another person with a penis, under the current law, demanded the right to be able to shower with girls and women at a local neighborhood swimming pool.
In this regard it should be noted that a lawyer actually did sue when he was not allowed to use a local women's gym which had only female showers and locker/changing rooms, and a judge agreed with his claim.
This apparently prompted Massachusetts to adopt a law exempting women's gyms from the state's anti-discrimination law; a move, some would argue, which recognizes that there are serious issues of sexual privacy when people with vaginas are forced to expose themselves to - or be exposed to - people with penises in restrooms, showers, or locker rooms, presumably without regard to their claimed gender identity.
There are also concerns from many adult women, and/or anxious parents of both genders, about sexual misbehavior - including everything from voyeurism to sexual assaults including rape - if anatomical men caught in a restroom for girls and women can make a legally valid claim to be transgender, especially since no proof of the condition is apparently required under the law.
While there appear to be no such reported cases during the brief period of time that the current statute has been in effect, this doesn't mean that such situations will never occur.
Moreover, there's no guarantee that the lawyer who filed the women's gym complaint in Milton (as well as elsewhere) would not seek to challenge the current law, if it is upheld, by insisting upon an alleged legal right to shower and/or change clothing with girls and women, nor that similar challenges/stunts would not occur as part of a fraternity prank, by other males with unsavory motives, or by those seeking to change the law by showing the problems it can produce in the real world.
So, should the current statute be repealed, legislators might look for a way to protect the interests of transgender students and adults without, at the same time. angering those concerned about sexual privacy and possible sexual misconduct from forcing girls to share restrooms with anatomical males.
Professor Banzhaf suggests that Massachusetts could still adopt legislation using the exact same legal standard of protection Congress used regarding religious beliefs under Title VII, as many states have done under their various Religious Freedom Protection Acts [RFPA], and as Congress did under the well accepted Americans With Disabilities Act [ADA].
In simplest terms, the protection accorded could require only a "reasonable accommodation," not an absolute right of access regardless of other interests which might be adversely affected.
For example, while students with certain mobility limitations are entitled under the ADA to a reasonable accommodation so that they can enter the school building and classrooms while using a wheelchair, they are not necessarily entitled to have access (usually by adding a ramp) through each and every building entrance, nor must each and every classroom necessarily be wheelchair accessible - provided there are sufficient entrances and classrooms to accommodate the tiny minority of students who use wheelchairs.
Similarly, under a reasonable accommodation standard regarding sexual identity, schools providing a sufficient number of all-gender restrooms to reasonably satisfy the requirements of the tiny percentage of students who are transgender would seem to adequately protect their rights without opening up all restrooms for girls and women to any and all anatomical males who might claim to feel female.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
