Eugene Volokh proposed a “thought experiment” of the unseemly sort by posing a hypothetical scenario in a brothel.
Let’s assume a country or state in which brothel prostitution is legal (as it is in some Nevada counties and in some European countries). And let’s assume a brothel that caters to many sexual orientations, and as a result has both male and female prostitutes working in it.
A gay man comes to the brothel, and says “I’d like a man to perform oral sex on me”; he’s not picky about the man. They go to the room and start to get down to business — but the gay man realizes that the man is physically a woman.
“Wait, I asked for a man!,” the customer says. “I am a man,” the prostitute says; “I self-identify as a man. And what do you care about whether I have a penis? You’re just asking me for oral sex.” “I don’t care how you self-identify,” the customer says, “I want someone who is physically a man, even if I’m not going to be touching his genitals.” The customer leaves (without paying) and complains to the brothel.
What do you think is the sound answer here?
Forget any factual stretches, and forget the unseemliness of the scenario. A takeaway from the hypo is that issues are raised by accommodating transgender rights that are significantly different than other rights protected under the Civil Rights Act of 1964. One of the “selling” points was that the rights protected were “immutable characteristics.” Gender identification is many things, but not an immutable characteristic.
Eugene offers that the best reaction to his hypo is that the brothel owner be entitled to assign a prostitute based upon the gender preference of the customer. The reason he picked oral sex was to eliminate the bona fide occupational qualification exception; the prostitute’s genitalia weren’t directly involved in the transaction. Still, customer preference in matters of sex would justify discrimination.
Eugene then takes the thought experiment in a more pedestrian direction, medical treatment (the impetus for the thought experiment having been a post involving a pap smear administered by a transgender nurse).
Whether you find Eugene’s hypo a bit far-fetched isn’t the point. The point is that before rushing forward to morph “sex discrimination” into gender-identity discrimination, there are distinctions to be noted and choices to be made.
When government bureaucrats unilaterally imposed the “transgender bathroom” rule under Title IX, it was a brilliant move. Rather than raise the panoply of issues involved in the shift, the idea spread only in the context of bathrooms. It was still controversial, but hardly as controversial as it might have been. Many shrugged and reacted, “Bathrooms? Big deal. I don’t care.”
But as I sought to make clear at the time, it wasn’t merely bathrooms. In addition, it included dorm rooms and hotel rooms for class trips, but this was rarely mentioned. To be fair, it would likely be an extremely rare problem, given that transgender people represent a tiny fraction of the population, and an even smaller fraction under the age of majority.
What Eugene raises, however, is important as we move toward figuring out how to address the issues raised by discrimination against transgender people. There are issues of personal privacy, of sexual agency, implicated by including transgender people under the “discrimination on the basis of sex” rubric. They will be there whether they’re discussed or not, the big difference being that we can either consider them beforehand or wait until afterward to see how unintended consequences play out.
In light of Eugene’s thought experiment, I return to one of my own.
Joe meets Lola, and they take a shine to each other. Joe asks Lola on a date, and Lola affirmatively consents. Joe goes back to his dorm, and is subtly informed by his roommate, Enrique, that Lola is quite the excellent sweeper on the college’s men’s curling team.
Joe is confused. He’s a bit slow. So Joe texts Lola and asks, “Lola, are you on the men’s curling team?” Lola responds, “you bet I am. Can’t wait to see you tonight, dreamboat.” Joe, never one to miss a trick, replies, “I didn’t know you were a dude. Sorry, but I’m not into that sort of thing.”
Lola is crushed. Joe was so adorable. Lola is now hurt, angry and offended that Joe refused to go on the date solely because Lola was a biological male who identified as a woman. There was no other reason for Joe’s cancelling the date. That’s sex discrimination.
Or to take it in Eugene’s more sordid direction:
And if we were to take the hypo a step farther, get past the date (which went spectacularly well), and ended in Lola’s dorm room, whereupon Joe learned of his mistaken assumption and revoked consent, boom. Same issue.
The point here is to show both the potential for conflicts and the breadth of normal human interaction where they could come into play. And taking this one step further than Eugene, there remains an additional wrinkle to consider.
Even if you’re fine with all this, there will be other people who are not. Whether it’s a matter of personal privacy or sexual agency, the fact that genitalia differ between people is a fact, even if it isn’t their truth. Does your being fine trump other people’s right not to be fine with it? I know, you’re right and they’re wrong, but aren’t they entitled to privacy and agency even if they fail to meet your level of wokeness?
These are the questions raised, but yet to be seriously considered, by extending laws that were enacted to serve the purpose of eliminating discrimination on the basis of sex, when sex had a binary definition, to discrimination against transgender persons.
It is not to say that discrimination against transgender persons is acceptable or shouldn’t be addressed, but to ignore the differences and the distinct issues that will almost certainly arise is to indulge in fantasy law-making. Rather than pretend these issues don’t exist, as too often happens leaving us to ponder how we ended up in this mess, we should consider the problems beforehand.