It Was Never Just About Bathrooms: Volokh’s Experiment

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.

35 thoughts on “It Was Never Just About Bathrooms: Volokh’s Experiment

  1. delurking

    “Gender identification is many things, but not an immutable characteristic.”

    This is what is up for debate. There are many who argue that gender identification is an immutable characteristic, and if it weren’t for our law and culture imposing behavioral norms on people based on their private parts, then minorities (i.e., those whose gender-ID-to-private-parts matchup is different from the majority’s gender-ID-to-private-parts matchup) wouldn’t be discriminated against and wouldn’t have such psychological problems.

    This matters to the hypotheticals. For many years after the civil rights act, “Can I have a white doctor, please?” was acceptable.

    1. SHG Post author

      That is one of the arguments made. It was made with sexual orientation as well. And from the woke perspective, it can’t be questioned. But then, people experiment with homosexuality and gender identity and end up back where they started. So is it fact or is it truth? Can it be discussed without the questioner being labeled a hater?

      1. Ray Lee

        “Can it be discussed without the questioner being labeled a hater?” No.

        By the way, the logic or rationale of that answer, vel non, can not be discussed either, unless you are literally Hitler.

        P.S. Note the correct use of quotation marks.

        1. Jake

          Ray said: “Can it be discussed without the questioner being labeled a hater?” As with most things the answer depends. Do you accept the observations of qualified medical professionals as evidence in the discussion? If yes, a rational conversation can be had but unless you understand the science it’s likely you will feel you’re being talked down to.

          There are eight categories of attributes in the gender taxonomy, five of which are measurable characteristics starting with genetic makeup and ending with secondary, outwardly observable sexual characteristics such as body hair location and amount. Each of these five medical characteristics, on every member of our species, is a non-binary dataset. In other words, everyone, including everyone who reads Simple Justice, falls somewhere on a gender scale. It just so happens that statistically speaking most of us are (or believe we are) very close to one side of the spectrum or the other.

          I would also point out that gender identity, the sixth level of the gender taxonomy, is also observable phenomena in psychiatric medicine. But since its measurement is not objective I will leave it out to avoid sticky, tedious arguments.

          Scott said: “But then, people experiment with homosexuality and gender identity and end up back where they started.” Sure, some people are just confused. But not all. And since the cost and complexity of testing every person who needs to go potty is prohibitive, we have to accept some gray area.

          Scott said: “Does your being fine trump other people’s right not to be fine with it?” Objection. Anyone’s feelz has nothing to do with this or anything else. That said, why do religitards get to be special snowflakes without your derision and invective in this matter?

          The point of all this is simple: Gender is measurably not binary. Therefore there are more than two sexual identities, even if the remainder is absurdly small. Those subgroups most impacted by discrimination should be the most protected by non-discrimination laws.

          1. SHG Post author

            Penis. It’s a big one. Whether it’s a problem doesn’t change its existence. I note in passing, “accept the observations of qualified medical professionals” doesn’t mean you get to pick the docs with whom you agree and ignore the rest.

            1. Jake

              “I note in passing, “accept the observations of qualified medical professionals” doesn’t mean you get to pick the docs with whom you agree and ignore the rest.”

              I’m not picking the doctors I get to agree with. Frankly, I don’t know what you’re talking about at this point. There are literally dozens of sexual development disorders which are widely accepted in the medical community and classify an individual as non-binary. If you want to trot out some religious quack that denies the existence of conditions that do exist, yeah, I reserve the right to point and laugh.

            2. SHG Post author

              You’re conflating disorders with sex, and your gender taxonomy with biology. Gots a penis. Gots XY chromosomes. You’re a biological male. The problem is you raised this as a bar to having a discussion (remember that part to Ray?), where you said depends on whether he accepts your rules. He didn’t impose rules, and he’s no religious nut. So you’ve made yourself the reason we can’t have a discussion because Jake doesn’t make the rules for the rest of humanity.

              You can point and laugh all you want. Or would you rather help to figure out how to end discrimination against transgender people?

            3. Jake

              I’m not asking anyone to accept my rules. I have not shared a single opinion on any of this. I’m expecting people to have a conversation where we cite facts, not feelz. Non-binary is a word. It has a definition in the dictionary.

              But, let’s say for the sake of argument I accept your position. Got a penis/you’re a male.

              What about a child born with an externally visible penis and a vagina? What sex are they?

              Or, for the sake of bathroom use: A person who is, by all outside appearances a woman, and has the internal sex organs of a woman, and endocrinology of a woman, but has a penis the size of an average clitoris for urinating which is hidden inside a fold of skin that looks like a vagina but is not?

            4. SHG Post author

              You lost me on the first line. Moving on, none of this has to do with being able to have a discussion on how to address the situation. Not to mention, everyone has heard and addressed the intersex anomaly args a thousand times. Don’t be boring. Now focus.

    2. Elpey P.

      “For many years after the civil rights act, ‘Can I have a white doctor, please?’ was acceptable.”

      I’m pretty sure this analogy ends with a black patient getting Doogie Howser in blackface and with Republicans winning elections.

        1. Elpey P.

          And Doogie Howser probably didn’t do pap smears either. Analogies are like cats. They often go their own way, they don’t care about constitutionality, and every now and then they choke on a hairball.

    3. B. McLeod

      Well, for “gender-fluids,” it’s certainly not an “immutable characteristic.” (Only shitlords and haters would contend otherwise).

    4. SPM

      You need to be careful dismissing “immutable characteristics.” If you assume that “culture (sic) imposed gender norms” are the only thing behind traditional gender roles, then it is just as easy to say that concepts such as “equality” and “diversity” are simply societal constructs that can be dismissed at any time. I can tell you as a physicist that none of the fundamental laws of physics or mathematics lead to concepts such as “equality” or “diversity”, they are simply concepts that our society created out of thin air.

      If you want to get rid of the constructs such as traditional gender roles, then it is just as easy for others to get rid of constructs like “equality” and “diversity.’

  2. Krishna

    Did the people “selling” the Civil Rights Act of 1964 really consider religion an “immutable characteristics”? I don’t know where those quotes are take from.

    1. SHG Post author

      Let me explain how “quotes” work. They can be indented. They can have special marks (“) at the beginning and end so that they’re identified as quotes. And the practice here is that they would relate to a source, which would be shown as either a link or a cite.

      On the other hand, what I write isn’t a quote at all. Rather, it’s my first-hand writing. I hope that clears up the mystery of the English language for you.

      As to religion, yes, that’s how it was viewed back then. How do I know? Because I’m old and was there. Things that happened in the past don’t need to meet with your approval. They happened whether you agree with them or not. So now you’ve learned about quotes and history. You’re welcome.

      1. Krishna

        I know you take solace in assuming that most questions posed to you are rhetorical and combative but my question was not. Discussions about religion conversion have always been a little… tricky. So I’m not that surprised that it was discussed as an immutable characteristics. But still seems odd since political questions about conversion have a very, very long history.

        1. SHG Post author

          That’s amazing how you know what I take solace in, considering the only things I know about you is that you’re an asshole and this is your third and last comment here. Hope you enjoyed your sick burn. Bye.

  3. B. McLeod

    Your extended hypothetical (not simply the brothel scenario) is where this is logically going. Although normally you would be allowed to not consent to sex, that obviously can’t be permitted where your only basis for not consenting is “discriminatory.”

    1. SHG Post author

      As we keep learning, over and over, one can never adequately anticipate where unintended consequences will lead, but we know that they will happen and wreak havoc. The least we can do is try to limit the havoc as much as possible.

      1. B. McLeod

        At the root of this is a “progressive” misconception that indulging in abstract, constructive assumptions makes them look smarter. In reality, it is a similar exercise to small children, playing “pretend,” and becomes positively unhinged when they try to graft on “Simon Says.”

        I would like to see a progressive commune trying to run a farm. First, they would have to bring in their colleague Dr. Knowlittle, the progressive veterinarian who talks with animals, so that they could determine the gender identities of the various animals before trying to breed them. Next would be Johnny Inkslinger, of Paul Bunyan fame, who would be in charge of maintaining the affirmative consent files. Napoleon, from Animal Farm, would (of course) be in charge of “safe spaces.”

          1. B. McLeod

            This same technique has a stellar success rate when directing and supervising cats. It’s simply a matter of anticipating their behaviors in time to give the commands.

  4. Gretz

    So, how does this work in marriage, now? Are you a jerk because the person you proposed to turns out to not be what they presented? Can you be sued for withdrawing your proposal, if they have hurt feelz? (One can always be sued, I know. Would they win a judgement?)

    What’s the presumption, now? Who has the obligation for disclosure: the person seeking a heterosexual relationship for the purpose of marriage and reproduction, vs the person who feelz like the genetic man or woman they present? Have we now (or soon) done away with the default presumption that dating / courting / legal relationship / sex has an end-goal of a family and kids?

    How does Obergefell (and the follow on Bakery anti-discrimination rules) affect annulment laws, anyway? If they’re post-op, they’re sterile, even as far along as medical technology has come on reassignment surgery, but: do they have an obligation to disclose it, or the genuine reason why they’re now sterile?

    Does it count as fraud? It used to be, but nowadays, we’re all obliged to pander to particular fantasies, lest we hurt someones feelz.

    On the other hand, the Mental Incapacity clause only protects the person who’s nuts, not the idiot suckered into marrying a BPD nutcase, and the ‘fraud, duress or force” clause doesn’t count. Even if the state has records of their mental issues, they’ll still smile and hand you a license, knowing full well you’ll be on the docket trying to undo it, soon enough.

    Can that throw a wrench into common law marriages, too? Does a certain period of time, living with and sharing an account with someone who ‘identifies’ a certain way, put one at risk at finding themselves in a common law marriage and a claim against your assets and earnings? Considering that people might co-habitate for a while before finding out the truth of their partner might be more likely to put them in that legal situation.

  5. DHMCarver

    I particularly liked your phrase in your last graf, “fantasy law-making”. I used to draft statutes for a living. I took it as a duty to “consider the problems beforehand” — particularly important as I drafted many criminal statutes. Surprisingly often, legislators would listen, and often back off an idea with an “Oh, I hadn’t thought of that.” But the gods forbid you get a legislator with a cause between his or her teeth. . . .

    1. SHG Post author

      As new laws are moving away from conduct and into dubious areas like thought and speech, the magnitude of unintended consequences grows exponentially. A decade or two from now, they’re gonna be really sorry they didn’t listen to me.

      1. DHMCarver

        Not to burst your bubble, but if they are not sorry now, they won’t be in a couple of decades.

        (Happy New year, by the way, and thanks for all of your work the blog. I have been on a break over the holidays, and when I am off of work, I am usually off line, preemptively taking your advice for 2018 before I read it today when I was catching up on the last two weeks of SJ.)

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