In December 2015, a new Washington State rule took effect mandating that both public and private entities allow individuals to access sex-segregated facilities—including restrooms, locker rooms, and “facilities where undressing in the presence of others occurs”—according to their preferred gender expression or identity. In other words, public and private entities must allow men claiming to identify as women to use facilities designated for women, and vice versa for women claiming to identify as men.
For good reason, pro-family Washingtonians have started a campaign to collect enough signatures to get Initiative 1552 on the November ballot. I-1552 would “require schools to maintain separate facilities for boys and girls and allow businesses to manage private areas in the way they feel is best for them.”
Aside from the obvious privacy and safety issues the “bathroom rule” raises, it is revealing to consider how the rule suffers from a more immediate defect: fundamental incoherence. To see why, one merely needs to observe how Leftists have twisted our understanding of sex to make the case for their social agenda—thereby establishing an arrangement that implements the very type of discrimination that they purport to be combatting.
Federal and state laws forbid discrimination on the basis of sex, and have done so since the mid-twentieth century. Yet a commonsense exception to these laws has always existed to allow public and private entities to separate facilities based on biological sex. For example, Title IX of the Education Amendments of 1972 forbids educational institutions from discriminating based on sex. If the dictates of this law were applied without exception, they would forbid schools, colleges, and universities from separating bathrooms or locker rooms based on sex. Realizing the problems inherent in this application, regulators carved out an exception for sex-based discrimination in restrooms, locker rooms, and shower facilities, so long as the facilities provided for each sex are “comparable.” Similarly, Washington State’s law governing public school facilities allows school districts to provide separate facilities (including toilets and showers) for male and female students.
These exceptions to anti-discrimination laws stood in place for decades without eliciting the faintest public protest. Individuals with male genitalia used facilities designated and designed for men, and those with female genitalia used facilities designated and designed for women.[1] Moreover, when these anti-discrimination laws were written, there was no concept of “gender identity” or “gender expression” as separate from biological understanding of sex.[2] This means sex-segregated facilities have, since their inception, discriminated on the basis of sex.
The new theoretical distinction between gender identity/expression and biological sex has triggered all sorts of problems where none existed previously. Nevertheless, the Washington State Legislature decided to codify the distinction by forbidding discrimination based on gender identity and expression. Nearly ten years later, Washington’s Human Rights Commission—an entity created by the Washington Legislature to administer and enforce Washington’s anti-discrimination law—issued the December 2015 bathroom rule.
The Human Rights Commission’s Executive Director, Sharon Ortiz, insisted at the time that the rule simply clarifies existing state anti-discrimination law. This should come as a surprise to those of us who have read the law in question, which explicitly protects “[t]he right to be free from discrimination because of . . . sexual orientation,” with “sexual orientation” defined as “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”[3] This right encompasses “[t]he right to the full enjoyment of any of the accommodations . . . [and] facilities,” such as public restrooms, free from gender identity/expression-based discrimination.
Yet far from forbidding such discrimination, the December 2015 bathroom rule in fact codifies gender identity-based discrimination. Facilities labeled for women, for instance, are now accessible only to individuals who identify as women, regardless of their genitalia. Biological men who identify as women have the same access to women’s facilities as biological women who identify as women. Biological men who identify as men, as well as biological women who identify as men, may NOT access those same facilities. Likewise, facilities labeled for men are accessible only to individuals who identify as men, again regardless of their biological sex. The distinction is not based on sex but on the gender with which one identifies. In other words, the new rule purporting to interpret a law forbidding discrimination based on gender identity effectively discriminates based on gender identity.
The Commission could argue that transgender males (biological women who claim to identify as men) and transgender females (biological men who claim to identify as women) do not have to use the facilities that conform to their gender identity. However, this arrangement would contradict the Human Rights Commission’s own guidance on the bathroom rule. Per the Commission’s “Questions and Answers” document released in tandem with the rule, “Only females can go into women’s bathrooms or locker rooms in a gender segregated situation. This includes transgender females [i.e., biological men] who identify as female.”[4] (The same, one would presume, applies to biological and transgender males).
Even if the Commission were to suggest otherwise (or simply amend the guidance document), forcing men identifying as men and women identifying as women to use the facilities that match their biological sex while allowing transgender males and transgender females to select whichever facilities they please would constitute further discrimination, this time on the basis of both sex and gender identity. Instead of eliminating discrimination, the Commission has simply replaced one form of discrimination with another.
In reality, the Human Rights Commission is not trying to eradicate discrimination. The purpose of the rule was to force on society a new radical scheme of social engineering.
To remedy these circumstances, Washington voters would do well to pass I-1552 and restore order to an arrangement plagued with incoherence.
Christina is a freelance legal blogger from the “other” Washington (Washington, D.C.). She received her law degree from American University and her undergraduate degree from the University of Notre Dame.
[1] Exceptions, of course, existed. Young children, for instance, are allowed to use the facilities that conform to the sex of the parent or guardian whom they are accompanying, even if the child’s sex does not match that of the parent/guardian (i.e., mothers can bring their young sons into the women’s restroom).
[2] For those not yet familiar with the terms, “gender identity” is defined as “[o]ne’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves.” According to this theory, one’s gender identity may not be the same as one’s biological sex. Similarly, “gender expression” is the “external appearance of one’s gender identity, usually expressed through behavior, clothing, haircut or voice.” Again, one may choose to express a gender that is different from his or her biological sex.
[3] Ironically, Leftists also insist “sexual orientation”— “an inherent or immutable enduring emotional, romantic or sexual attraction to other people”—has nothing to do with one’s gender expression or identity. However, the law equates gender expression and gender identity—two concepts that are distinct in Progressive parlance. It seems the Washington Legislature hasn’t quite grasped the nuances of Progressive gender theory.
[4] The Commission released a Q&A document, “Questions and Answers Regarding WAC 162-32-060,” containing answers to frequently asked questions concerning the December 2015 bathroom rule. In response to the question, “Can men now go into women’s bathrooms or locker rooms?” the Commission responds with an emphatic “No.”
