Almost immediately after Obergefell v. Hodges was decided by the Supreme Court, the progressive movement said “yay”, and set about the next problem with society that needed solving in its opinion: transgender acceptance. The ways this is being accomplished have numerous problems, ones that are consistently ignored in favor of politically correct “tolerance” platitudes.
Framing the Situation
First up, WingedPanther’s overview of sexuality and gender explains the definitions being used when the word “transgender” is used, as well as the scientific problems inherent in any definition of transgender.
Second, transgendered people are allowed to “self-declare.” Essentially, if you believe you are transgender, your mere statement of that is all that is necessary to establish all privileges, special accommodations, etc. This has a litany of problems, but I’ll get to that later.
Third, the best estimates of transgenders are extremely unreliable. Due to the definition itself (both “binary” and “nonbinary”), it’s virtually impossible to establish what percentage of the population is transgender. The 2011 report cited here says “0.3%.” Keep in mind that LGBT population as a whole is approximately 3.8% (see the post link two paragraphs up).
In attempts to progressively remove “discrimination,” both through “tolerance” and “accommodation,” there have been numerous so-called SOGI laws (Sexual Orientation and Gender Identity). These do one (or both) of two things:
- Add sexual orientation and gender identity as a protected class under discrimination law.
- Mandate public (and/or private) facilities be usable based not on biological sex but on self-declared gender identity.
The Problem with Wording
Stepping back from the laws themselves, too many words get thrown around without any respect to what they mean, imply, or cause.
This word is applied to transgenders to be anything that the transgender person feels is unfair. If you do not accommodate (see below) them to their satisfaction, it’s discrimination. One is beholden to someone else’s subjective definition, rather than an objective definition both parties can reference.
This word means whatever the transgendered person feels will make them comfortable. It is only acceptable if the transgendered person thinks that, and ignores anyone else involved. Women uncomfortable with the apparent man in their locker room? Tough.
This term is a clarion call for progressives everywhere, but in truth it’s a subjective approach again. By law, every citizen of the United States has equal rights right now, protected by the Bill of Rights (with special mention to the 13th, 14th, 15th, and 19th Amendments). While the Civil Rights Act was necessary to remind everyone what equal rights meant, this has been true for decades.
Equal rights means that you are treated the same, legally speaking, as everyone else. It does not mean that any and every slight from anyone (or anything) is an abridgement of “equal rights.” Before I tangent into another post entirely, I’ll leave it at that.
All three of these misused terms end up doing two things expressly forbidden by the First Amendment: coerce action and chill speech.
SOGI laws alternately require private citizens (or businesses) or public facilities to do specific things or face legal action. Someone must do something, without exception.
While it can be argued that since “preventing discrimination” is already enshrined in civil rights legislation, this isn’t any different, it forgets the primary consideration for abridging speech (which can include action): compelling state interest.
Compelling state interest is Supreme Court-speak, and best illustrated for the prohibition on shouting “Fire!” in a crowded theater. It is an extremely high bar to reach, and rightfully so.
When someone can simply declare their sexual orientation or gender identity, and thus claim protected status (see below), it makes anyone near them uncertain of what they can and cannot say.
Pretty much anything can subjectively be called “discrimination,” and due to the broadness of Equal Opportunity initiatives, the offended person is given the benefit of the doubt the vast majority of the time.
So rather than potentially say something “discriminatory,” many are self-compelled to say nothing at all. This is also an abridgement of speech.
The Problem with Protected Classes
The foremost problem with laws that add SOGI as a protected class under discrimination law is the nature of all the other protected classes. To review, these are:
- (Biological) sex
(This is the majority of the federal set of protected classes based on the Civil Rights Act of 1964 and other laws. Age and disability tend to be dropped from company policies and similar regulations, mostly for safety reasons.)
With the exception to religion (which itself is protected by the First Amendment to the US Constitution), every single one of those classes are unchangeable. You age at a constant rate, your race and ethnicity are set by your parents, and your sex is determined by XX or XY.
Sexual orientation and gender identity are not unchangeable. There are stories of people who wake up one day “feeling like a man” and the next day wake up “feeling like a woman.” Because of this changeability, every SOGI law has to rely on self-declaration. One cannot just observe “oh, they’re gay/trans-female/nonbinary-xe.” One can observe “oh, they’re a white woman about age 35.”
Because all other protected classes are unchangeable, it is impossible to “game” discrimination. You’re either a man or a woman, black, white, hispanic, or asian (or others, I’m keeping it simple). You do not wake up one day and you’re suddenly something else.
But you can declare “I’m gay today,” then promptly declare your boss to be a discriminating lout for telling you your work performance is unacceptable and you’re getting fired.
The Problem with Privacy
The Houston and Charlotte ordinances, and their state-level “bathroom bills” (Texas’s SB6 and North Carolina’s HB2) focus around the second aspect of SOGI laws: mandating facility use. Of course, the most contentious gender-separated facility these laws address is the bathroom. But it also includes changing rooms, locker rooms, and anywhere else a “Men/Women” pairing exists.
Again, the language of self-declaration shows up. Someone says they are female, and they can walk into the women’s room. Someone says they are male, and they can walk into the men’s room. And by law, no one can question them; it’s discrimination to do so.
Recall that the best estimates of transgenders is around 0.3% of the population. This works out to (assuming 315 million people in the US) about 945,000 people. Additionally, the number of registered sex offenders is about 806,000 people (through March 2016). Per the Center for Sex Offender Management, 12 to 24% of all registered sex offenders will commit another offense (though blessedly it’s not likely to be sexual). Adding another angle is that most sexual offenders have committed these acts multiple times (often to multiple victims) before getting caught and convicted.
The reality about a self-declaration-based SOGI law is that it makes questioning someone’s motive on entering a gender-specific facility illegal. Rather than being able to notice something “off” about an apparent man (or woman) entering the opposite gender room, one has to wait until something wrong has already happened. Consider these two cases of voyeurs caught in Target, a store famous for having a self-declaration SOGI policy:
SOGI laws make it impossible to stop a potential crime (which per the numbers above are about 50/50 likely compared to the number of transgenders not attempting to game the policy), because that would be “discrimination.”
Give or take, women take up 50% of the population (so about 157.5 million). This is over 166 times higher than the entire transgender population. It’s also statistically true that women are generally weaker than men (and substantially, as humorously illustrated here). A man intent on a sexual offense can simply put on a dress, walk into a bathroom or locker room, and be most of the way done before anyone stops him. And by SOGI law, no one can stop him before he starts.
One must also consider the simple fact that women and men are generally uncomfortable being undressed around the opposite gender. While someone can “identify” as a gender all they want, barring some drastic (and extremely expensive) surgery they still look like their biological sex.
SOGI laws ask the public at large to make 0.3% of the population happy while making 50% of the population fundamentally uncomfortable and potentially unsafe.
The Problem with Deliberate Omission
The biggest complaint against laws like SB6 and HB2 is they “discriminate against” transgenders. Barring use of the flawed misuse noted above, this is flatly untrue. Both bills do the following:
- Require public facilities to be used according to the biological sex of each person
- Allow any private facility to decide their own policy as they so choose
The first doesn’t prevent the “third option” of a separate “family/unisex” restroom that gives a transgendered person privacy away from those they’re uncomfortable around.
The second is what is deliberately omitted from diatribes against the legislation. It’s reported that the first provision (which is fairly limited) is somehow extended across every facility, period, in the state. No, any company or person can decide to implement their own bathroom policy, with no public official in the state allowed to tell them that’s wrong.
The second point allows Target’s SOGI-based bathroom policy and more typical gender-based policies to exist with no one in government getting in the way. It rightfully lets people “vote with their feet” about their agreement with a given business’s policies.
SOGI laws on their face sound “inclusive,” “tolerant,” and “non-discriminatory.” But behind all of those (oft-misused) terms is a host of other important facts being ignored in the name of political correctness.
Rather than letting our laws be decided based on good feelings, it is prudent to consider the entire picture with as many facts as possible.