Sunday, May 15, 2016

Gender and the law - a fascinating fight is shaping up

I see that North Carolina's gender issues are raising some intricate legal problems.  The Charlotte Observer reports (bold, underlined text is my emphasis):

The Obama Justice Department contends that sexual orientation is not a personal decision, but is based on an array of factors affecting an individual’s sense of gender and is protected by civil rights laws enacted 40 and 50 years ago. In slapping the state of North Carolina with a suit charging HB2 violates sex discrimination provisions in the Civil Rights Act of 1964, a 1972 education law and the 2013 Violence Against Women Act, Attorney General Loretta Lynch accused North Carolina officials of “state-sponsored discrimination against transgender individuals.”

. . .

But Ed Whelan, president of the conservative-leaning Ethics and Public Policy Center and head of its program on the Constitution, the Courts and the Culture, says laws like North Carolina’s “do not involve by any conceivable measure discrimination on the basis of gender identity.”

North Carolina’s law disregards gender identity by defining gender as a person’s biological sex at birth, Whelan, a former law clerk to the late conservative Supreme Court Justice Antonin Scalia, said in a phone interview.

. . .

McCrory told Fox News that Obama administration officials are “trying to define gender identity. And there is no clear identification or definition of gender identity.”

Perhaps, but [Pamela] Karlan [who teaches public interest law at Stanford University] said the medical profession has recognized that “people’s sex is made up of a complex group of factors, and for most people, the factors tend to reinforce each other.”

For most people, she said, “their chromosomal sex and their external genitalia and their sense of a social role, and the hormones that are coursing through their bodies all kind of align. For transgender people, their chromosomal sex and external genitalia at birth don’t necessarily correlate with their internal sense of gender.

There's more at the link.  It's well worth reading in full for an explanation of all the issues.

The core of the problem, to me, is how one deals with what the article calls individuals' "internal sense of gender".  There are (as I've pointed out before) some people (vanishingly few, as a proportion of the general population) who suffer from genuine, physical medical problems in this area;  sex chromosome abnormalities and the like.  (For example, a European study showed sex chromosome abnormality rates ranging from 1 in every 1,934 persons [0.05%] to 1 in every 14,828 persons [0.007%].)  For such people, I have enormous sympathy.  It must be a hell of a burden to carry through life.

However, that doesn't extend to blind, unthinking acceptance of psychological or psychiatric issues with gender identity.  Sure, those suffering from such issues need treatment as much as those suffering from physical abnormalities, but the appropriate treatment is psychological or psychiatric - not surgical, and not tolerance of their delusions!  Just because someone thinks they're male or female doesn't mean that they are male or female.  With vanishingly few exceptions (as outlined above), medically and physically, the chromosomes determine gender.  Period.  Someone's "internal sense of gender" does not.

That's why I don't find North Carolina's law a problem.  It states baldly that bathrooms are reserved for the gender determined by one's biology - one's chromosomes.  For those very, very few people with mixed-up chromosomes, I daresay this might cause issues, but I don't think they're so severe that they can't be overcome.  For a start, the law, by referring to the biological gender of one's birth, implicitly acknowledges that some people's gender is biologically indeterminate at birth.  I don't see the law excluding them from consideration.

On the other hand, I have very strong objections to the administration's attempts to legally define gender according to non-scientific, non-medical, touchy-feely, politically correct factors.  That's simply unacceptable.  Period.  To my mind, it's nothing more or less than using the law as a club to ignore medical and physical reality and impose ideology instead.

One hopes sanity will prevail in the courts.  If it doesn't, I daresay it will on the streets . . . because many of us will never accept or obey laws and regulations that fly in the face of nature and common sense.



Hideousdwarf said...

I object to North Carolinas's law based on purely libertarian principles. A government has no business regulating where people defecate.

kamas716 said...

In the everyday world there are no hall monitors checking to see what wiggly bits you got as you enter the restroom. Someone in high heels, a dress and wearing makeup isn't likely to arouse anyone's ire when they walk into the ladies room. Someone walking in with a beard and mustache because he decides that _today_ he feels like woman is going to raise some eyebrows, especially if he's gonna stand to urinate.

The NC law was probably unnecessary as the business or the people in the restroom could have likely already had grounds for pressing charges for disorderly conduct or the like if it was an issue. The heavy handiness of the Federal response is completely uncalled for. As Peter pointed out, this is the administration trying to define terms for things without a basis in science, history or culture (until extremely recently).

As this fight goes forward we'll likely end up with another abominable SCoTUS ruling like we did with the question of gay marriage and ACA simply because the court will probably end up very liberal given the likely candidates this November, and we'll have another judge or three that believes words don't have meanings.

Old NFO said...

This is truly a 'lack' of sanity... This hasn't been a problem until now. The bigger issue, IMHO, is the access to the locker rooms...

Uncle Lar said...

Someone, LBJ perhaps, once famously said that legislation should not only be evaluated based on the good it could do if properly enforced, but also by the damage it could cause if abused.
I see a high probability for abuse here.
I'm with Old NFO on this. It's not so much the toilets as the locker rooms where this will present significant issues.
Of course some lib prog idjit was on the news over this and was positively delighted at the thought of little boys and girls sharing the same locker room. Huge step forward in putting to rest all those old tired white Christian ideas about sexual identity don't you know.
I managed to not throw anything through my TV screen, barely.

Judy said...

All I can say is, "Thank God, my children are grown."

Daughter and I have now established the 'buddy system' for going to the bathroom in public restrooms. This system was only used in rest stop bathrooms but now is used in any multi-stall bathroom.

Anonymous said...

They are biological science deniers. The science is settled and they should be ashamed for denying it. If it saves just one child to pass a law preventing the use of public restrooms,accessible by children, by transgender and transgender wannabes it is justifiable.

Don't we hear terms like this used by progressives all the time. Fight back on their terms. Resist tyranny.

JK Brown said...

The reason the media keep calling these "bathroom laws" is because they know if people consider the issue in the context of locker/changing rooms, they lose. Although, the argument when it arises is the fallacy that all locker rooms have closed door showers, etc.

I don't understand the "at birth" specification or the chromosomal definition. It is ignorant.

We segregate bathrooms and locker/changing rooms based, previously on sexual attraction with the polite ignoring of homosexuality, but fundamentally on the basis of penis or no penis.

Penis or no penis is a clear distinction that aids in equitable enforcement. A violation is clearly determinable in the field by those tasked with enforcing the segregation regardless of manner of dress, body, hair or facial features, etc. It would require only minor exceptions for those who lost their penis to disease or injury, in which case birth gender could be definitive.

Is there a law requiring segregated bathroom/lockeroom facilities on, now ambiguously defined, male and female distinctions? Or can a business simple change to penis and no-penis facilities. Really, the only difference between current male and female facilities is the adaptation of the collection and disposal fixtures for urination via a penis while standing.

Given how both sides keep avoiding addressing the purpose of the custom and the simple solution, I can only guess that the issue is more political flame than actual issue to solve.

Anonymous said...

"To my mind, it's nothing more or less than using the law as a club to ignore medical and physical reality and impose ideology instead."

That defines the current administration to a T, in nearly all of its activities. I don't believe for a minute that the folks in DC pushing this care very much, if at all, about gender identity. It's the standard lib issue of creating a problem (or a certain level of societal chaos) and then rescuing us poor slobs from it.

Eventually this will progress from legislative/legal clubs to physical ones.


Eck! said...

So far no one has read the actual law. Part two is the one you need to pay attention too. Seems the average Joe and Jill those of the 99.965% can't sue any more too for employment issues. Whats hiding in that law besides some crappy law?

As to the large elephant that gets trotted out with show lights one forgets the transgender types generally are just like the rest of us meaning trying to get on with life and a pervert in the potty is a risk to them too. And boys are you sure the shorter than average
guy that came in with you fully equipped with those parts, yep there are female to male types too.

Seems about 90 plus percent of the comments are from men on the subject of ladies rooms. There is fundamental issue there and maybe
the larger elephant.


Will McKeon said...

I wonder about the unintended consequences of the government's argument. Could a guy take that argument and use it to justify why he didn't register for the draft? Couldn't he just argue that at that point he was self-identifying as a woman and thus was not required to register for the draft? Also, what about federal grant\loans that were designated women only (if there are any)? Would they now be required to accept applications from individuals who self identify as women? I think the federal government may be opening themselves up on fronts that they haven't thought about yet. Once you make this argument then it's hard to deny that same argument used against you for other situations.

Gorges Smythe said...

Well said.

richard mcenroe said...

HideousDwarf since Libertarian President Gary Johnson said the state DOES have the power to force you into a contract to bake a cake for gays or Nazis, you might want to reconsider that.

Anonymous said...

For those who note that the focus is on bathrooms vs the locker room, and wonder about their children, I'll provide the following history that doesn't seem to be reported in the MSM. The law was sponsored by the president of the Charlotte LGBT chamber who is a registered sex offender convicted of: Sevearance-Turner was arrested in 1998, when he was 20, and charged in Cherokee County, S.C., with a “lewd act, committing or attempting a lewd act upon a child under 16.”

So he got the gender law passed in Charlotte, and the State of NC passed its' law to override the Charlotte law. And we're off to the "bigoted" races.

Hideousdwarf said...

@richard mcenroe
libertarian principles, not the same as the Libertarian party, of which I am not a member.

Bibliotheca Servare said...

The law doesn't force anyone to do (or not do) anything, except when they are 1: employed by the government and using a government "owned" restroom or shower facility, 2: not employed by the government, but using the aforementioned facilities, and 3: a person who would like to pass a law forcing businesses and business owners to capitulate to liberal insanity on this specific issue. In case 3, all the law does is make it impermissible to use local legislation to give liberal insanity regarding gender "identity" the force of law. It doesn't tell anyone what bathroom or shower to use unless that bathroom or shower is "owned" by the government. Private business owners can do what they wish. :-)

Bibliotheca Servare said...

*or* 3, not *and* 3. Dangit.

Inconsiderate Bastard said...

Other than this being an obvious example of the federal government being way too large and needing to be cut down to size, rather severely, because it's nothing more than a leviathan imposing brute force on tjhe minions, I'm curious.

"There are (as I've pointed out before) some people (vanishingly few, as a proportion of the general population) who suffer from genuine, physical medical problems in this area;"

Numbers, please, Peter, and I'll request precision: exactly how many people are so afflicted, and to what degree? I'm curious of the justification for upending millenia of human experience.

I suspect it is, as you say, "vanishingly few," and when that's proved with hard numbers I'd like to find some attorneys interested in pursuing expensive and destructive legal remedies for other similarly small segments of the population. After all, Alinsky works both ways, and there's bound to be a sharp legalist somewhere capable of making Obama's and Lynch's retirement, shall we say, "interesting."

Billll said...

The issue seems to bear a close resemblance to concealed carry laws in that if you're doing a decent job of concealing what you're carrying then no harm, no foul. What's really going on is Obama taking one last opportunity to rub America's nose in the "I won" meme he's so proud of.

Pawpaw said...

Surprisingly, I own three gender-neutral bathrooms. In my home. Go inside, lock the door, do your business. No problems, no worries.

This brouhaha is about the social justice warriors wanting everyone to care about their issues.

Anonymous said...

Will a coroner have to ask the corpse to self identify it's gender?


Chris Sutch said...

"Chromosomes" aren't all there is to it.

"Biological sex isn't even as simple as "Penis/Vagina". That may be what you think of, but that's not all there is to it.

The "Science" is far from simple. and the argument of XX female, XY male is an argument at about an 8th Grade level (enough to get a person interested in looking for more information). Genetics are complicated. People are complicated. and we don't all fit in your two nice little boxes. It would be great if we all did. The simple fact is, we don't. Many of us have FORCED ourselves to fit in those boxes over the years. and it hurts.

Chris Sutch said...

This is the end result. Harassing people who don't fit others expectations. How are you going to feel if this ever happens to your wife or mother who doesn't have time to shave/pluck their mustache that day?

Liam said...

Hi Peter

Your comments on North Carolina HB2 indicate that you think that it's a law about bathroom usage. Sadly, it's anything but. I suggest you read this article (which contains a link to the bill in question) and see how damaging this is to workers and their rights not to be discriminated against.

The flashy bathroom section is such a false front, designed to stir up a fuss and take all attention away from the meat of the bill, that it doesn't even contain any penalties should someone ignore the regulations in Part 1 of the bill.

Your sincerly

Peter said...

@Chris Sutch: I'm not worried about that ever happening to my wife. Anyone trying to do that to her is very rapidly going to wish he hadn't, even if she's alone and I'm not around. If I am around, he's going to wish the same thing, squared.

Anonymous said...

In my opinion, Billll and Pawpaw nailed it. SJWs want to force the rest of us to change our behaviors to suit their will. The exercise of power.


Chris Sutch said...

@Peter - I don't think you read my link. Who's "he" in this context? There was no "He" here. This was a cis-Woman, wrongly accusing a cis-Woman of being Trans.

So Tell me, what are you going to do exactly?

Bibliotheca Servare said...
This comment has been removed by the author.
Bibliotheca Servare said...

Sorry, minor edit.

.03 to .005% of the population.
That is the size of the segment of humanity for whom the statement "XY is male, XX is female" is an inaccurate one. Three hundredths of one percent. Unless you are a member of that group of intersex individuals, your issue is a psychological one. Yes, mental illness sucks. Refusing to acknowledge that it *is* mental illness (because "female-looking brain structure"! the "science" is settled!!1!) is not a valid solution. Putting guns (the threat of state violence in the event of noncompliance) to the heads of the citizenry to force them to deny that it is a mental illness is also not a valid solution. Don't try argumentum ad verecundium here, Mr. Sutch. The fact that chromosomal determination of sex is taught in grade school does not effect the veracity and accuracy of that fact. Rather, it suggests something unfortunate about your own intellectual capacity that even such simple, inarguable aspects of biology arggainre beyond your grasp. The field of human biology and genetics is full of brilliant, doctorate-holding scientists who, with almost no exception, think that folks like yourself are batshit insane and/or dangerously ignorant with regards to this issue. *that* is a valid "argumentum ad verecundium". Voodoo and pseudoscientific, child-mutilating insanity are the only "authorities" on your side of this argument, Chris. Good luck with that.

bart simpsonson said...

Any logical refutation of the "reasoning" used to allow all this restroom usage "confusion" is doomed to failure with the bunch advocating for it. In what other area or topic do they use logic to arrive at a, well, logical, conclusion? It is just about what they want and when they want it. Not if it makes sense. Sense is not a consideration, Fool........

Chris Sutch said...

@Bibliotheca Servare

You state:
--The fact that chromosomal determination of sex is taught in grade school does not effect the veracity and accuracy of that fact. Rather, it suggests something unfortunate about your own intellectual capacity that even such simple, inarguable aspects of biology arggainre beyond your grasp---

It is not that it's taught in grade school - it's that it's a simplistic MODEL.

You think of the XY/XX as a simple switch On or OFF.
The truth is there's other genetic and biological factors at play.

To put it in a visual Think of it like the color spectrum.

On the Journey from Purple to blue - Where does "precisely" does purple end & blue begin?

Peter said...

@Chris Sutch: I'm sorry, but I completely disagree with your statement that there's a biological or genetic or chromosomal continuum involved. There may be a psychological or psychiatric continuum, but that does not correspond to medical and physical reality.

The chromosomal abnormalities that can result in an indeterminate sex are know, and can be measured. There's no continuum involved. To suggest that there is, is to force 'hard' science to conform to the 'soft' pseudoscience of the social so-called 'sciences'. It's to let emotion, feeling and perception undermine and subsume reality - and I'm simply not prepared to do that, or to allow anyone to insist that I should do so.

Reality is reality. Psychological or psychiatric factors that cause some people to want to diverge from that reality are aberrations, and should be treated as such. For those very, very few who have genuine physical issues . . . I can only have the deepest sympathy, and offer them all the support I can in their terribly difficult journey. For those lacking such physical causes, I also offer sympathy, but I will not behave as if their wrong perceptions deserve my support and adherence. They need treatment to get their heads around their problem. Condoning and tolerating it will not do that.

I know this approach is unpopular with people who put feeling and emotion ahead of verifiable physical and scientific reality. That's too bad, but it won't cause me to change it.

Chris Sutch said...

@Peter, You are of course free to disagree - you show your ignorance of the subject, but you're free to do that.

As just a small example of that - Males produce estrogen - females produce testosterone - just in smaller amounts (usually). Males sometimes develop female secondary sexual characteristics (Gynecomastia for example.) Females at times develop male secondary sexual characteristics (the a fore mentioned Woman's mustache).

The Wikipedia page on "Gender Verification in sports" states: It is not always a simple case of checking for XX vs. XY chromosomes to determine whether an athlete is unambiguously a woman or a man. Fetuses start out as undifferentiated, and the Y chromosome turns on a variety of hormones that differentiate the baby as a male. Sometimes this does not occur, and people with two X chromosomes can develop hormonally as a male, and people with an X and a Y can develop hormonally as a female.

You yourself acknowledge that it happens, to differing degrees & that's what we're talking about - differing degrees.

And you disagree - and think it's all in their heads; and in some it may be - you say they need treatment. Guess what - the treatment? Is Transition. Ask a medical professional who specializes in it. Treat their overlying condition first, (substance abuse, depression, etc.) -- Then work towards transition if that's what they need. because otherwise? Their depression will come back.

Peter said...

@Chris Sutch: Stop tap-dancing around the subject. There is no real ambiguity of the sort you're trying to allege. Wikipedia is not a medical authority and never will be. Talk to geneticists and those in the field (as I have), and the matter is far less 'cloudy' and much more clearly defined.

The object of those in favor of gender diversity is always to 'cloud the issue' - obfuscate, prevaricate, bring in all sorts of extraneous concepts and issues that prevent one seeing clearly. Unfortunately for them, science is hard, not soft. Genetic and chromosomal issues can be clearly identified and measured. Yes, there are those with complications that make it very difficult to assess gender - but they are less (a LOT less) than 1% of the population. This can be measured very accurately. The others do NOT have genetic or chromosomal issues - they have psychological or psychiatric issues. The cure for the latter is NOT transition, because it isn't transition at all. Their genetic and chromosomal gender remains, irrespective of any surgically-imposed physical changes. It's merely living a lie, using surgery as a form of makeup to hide reality.

I won't play that game. If we can't be honest, there's no point in continuing this discussion.

Chris Sutch said...

@Peter -

You're right of course in that Wikipedia is not authoritative; It has multiple references of course, those are authoritative. It is convenient for Layman to point to. I point to Wikipedia... You state you've "talked" to geneticists... OK, great. Got some published papers on the subject you can quote? Or do we just take your word that their word is authoritative?

In any case suppose I stipulate that it is 100% psychological. Great. Now what? What treatment do you think transgender persons should get?
Thorazine? ECT? Aversion therapy? Teach them their sick? They need to bury their desires deep down inside?