In the juvenile 1981 sex-comedy, Porky’s, there’s a scene where teenaged boys are looking at the girls’ showers through a hole. At the time, it was considered hysterically funny. Today, it would be outrageous, an inexcusable violation of the privacy of the young women. But Judge Jorge Alonso of the Northern District of Illinois says otherwise.
So far, the right not to be seen unclothed by the opposite sex is not on the Supreme
Court’s list. By bodily integrity, the Supreme Court was talking about physical bodily integrity,
not visual bodily privacy. Rochin v. California, 342 U.S. 165, 172 (1952).
This will no doubt come as a shock to some, that there is no substantive due process right to not be viewed naked by “the opposite sex.” There are many who argue, without basis beyond the depth of their passion, that there should be some free-floating right to privacy from all, including the teenagers who might pull a Porky’s. But here, one step further away, the government can compel a woman to shower knowing that the boys are looking. Well, not exactly the fact pattern Judge Alonso was talking about.
In Count II, SPP asserts that SPP Students have a fundamental right to bodily privacy that protects their partially- or fully-unclothed bodies. They assert that this right includes a right to
be free from government-enforced, unconsented risk of exposure to the opposite sex when they or members of the opposite sex are partially or fully unclothed.
The plaintiffs, Students and Parents for Privacy (SPP), challenge the school district’s policy permitting students to use bathrooms and locker rooms based on their “claimed gender.”
Plaintiffs allege that the words sex and gender mean different things. One’s sex is either male or female, depending on the union of male and female gametes at one’s conception. Gender, on the other hand, is a social construct and runs along a continuum from very masculine to very feminine. Plaintiffs allege that a person’s perception of his or her own gender does not change his or her primary or secondary sex characteristics or his or her genes. The crux of this suit is that defendants seek to affirm the claimed genders of students by allowing male students who claim female gender to use privacy facilities (i.e., bathrooms and locker rooms) designated for use by the female sex and female students who claim male gender to use privacy facilities designated for the male sex.
What’s curious about this contention by plaintiffs is that they do not challenge the “right to exist” of transgender students, as the argument is usually phrased. Indeed, they concede that they do exist, and acknowledge that gender varies. What they do not acknowledge is that variations in gender change the sex of the student. Their genitalia remains intact, regardless of the gender claimed.
This was the case when “Student A,” a “male student with a feminine gender,” entered the girl’s locker room.
District 211’s enforcement of the compelled affirmation policy has caused SPP Students embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation and loss of dignity. SPP Students are at continual risk of encountering (and sometimes do encounter), without their consent, members of the opposite sex while disrobing, showering, urinating, defecating and while changing tampons and feminine napkins. When District 211 first allowed Student A to use female restrooms, SPP Girls were startled, shocked, embarrassed and frightened by the presence of a male in the girls’ restroom.
Do the offended high school girls have a right to visual bodily privacy from a male student in their bathroom and locker room? Do the embarrassed girls have a right not to be confronted with a male penis as they go about their business? No, the court held. They do not. There is no substantive due process right to such privacy. The court granted the defendants’/intervenors’ motion to dismiss for failure to state a cause of action.
But then, the Porky’s teens don’t need a hole in the shower wall to get their jollies by peering at the nubile bodies of naked teenaged girls. They just need a copy of Judge Alonso’s decision. If the girls have no right to “bodily visual privacy,” then there is nothing for the boys to violate.
The simple response is that a transgender student is different, and that their right to not suffer discrimination based on their gender changes everything. Does it change the rights of the girls whose gender aligns with their physiology? Does it change the rights of the girls who are embarrassed, humiliated and offended by the presence of a male in their locker room as they shower and attend to their physical needs?
One can argue they shouldn’t care, that they’re wrong to care, but that’s a matter of sensibility, and while it’s fine for you not to care, to be willing to sacrifice your privacy for the sake of transgender students, you don’t have the right to decide for some teenage girl that she’s not allowed to desire personal bodily privacy. That’s her call, not yours.
The issue of whether there exists a right to bodily visual privacy isn’t contingent on whether one supports the right of transgender students to exist, or to enjoy the use of facilities that best align with their gender. The right at issue here is that of the girls who don’t want to engage in the list of bathroom activities in front of a male. That might be a male who identities as female, or any other male. If they have no such right for one, they have no such right for any. Rights are not contingent on how we feel about the nature of the person violating them.
And to take the problem a step further, if the girls have no right to not be offended by the government-compelled inclusion of biological males in their locker room, what of the myriad complaints of offense taken under Title IX for conduct short of physical sexual contact on college campuses? If a boy in the girls’ bathroom doesn’t impair their educational opportunity, does a boy telling a joke that transgresses someone’s sexist sensibilities? Is there no right to visual bodily privacy, but a right to never hear unpleasant male words?
This is not to say that discrimination against transgender students is, or should be, acceptable, but how to address the substantial differences between sex discrimination and the quasi-related problems of gender identity. They aren’t the same, and raise distinct problems. But as Judge Alonso’s holding shows, the rules that apply to protect the rights of transgender students facially undermine the claim of rights by women otherwise. If there’s no right, then there’s no right anywhere or for anyone. But there cannot be a right for some but not others based on how much we like the identity of an aggrieved party.
H/T The College Fix
Putin.
“One has to respect the right of the minority to self-determination, but at the same time there cannot and must not be any doubts about the rights of the majority.”
Privacy for your taxes and transparency for your body? You’re linking them all up Boss…
I’d like to go back to the system where girls wore dresses and boys wore pants. Then its easy to see who thinks they are what, it stops any social mistakes, and if Klinger could do it I’m sure any guy who doesn’t know what he is can do it!
Gotta be ascairt of whatcha might see in that hole:
It’s normal and acceptable for children to be confused about their sexual identity. What’s not normal is that adults use that confusion to push a radical agenda. [Ed. Note: Balance deleted. Focus. FOCUS!]
Full transparency for all human interactions.
It is certain to do wonderful things to our sense of social cohesion
SHG,
Substantive due process is a thin reed to hang any federal claim on. No one really knows what it means.
For district judges like Judge Alonso (and me), we are much more apt to allow plaintiffs to proceed on a statutory claim as the judge did in the case you mentioned. In short, substantive due process claims are too squishy* for mere mortals like district judges to recognize absent something from our superiors.
All the best.
RGK
PS Example: Because they attack Joan’s flower gardens with a vengeance, I have a substantive due process right to shoot bunnies with my .22 rifle using high velocity shorts despite the city ordinance to the contrary. As the sun rises over flyover country, them damn things are on my frail mind.
You shot Thumper?
I agree that substantive due process is a thin reed, but why then not Title IX given the sweeping expansion of its breadth otherwise? If certain statutory claims are to be given a million miles latitude for some things, why are others relegated to substantive due process and held so close to the vest? Either a woman’s education is impaired by sexual trauma caused by a person of the other sex or it isn’t. Or is that too just a social construct?
SHG,
But the judge ruled:
The Court concludes that the standards for pleading discrimination (including harassment) described in Tate, Tamayo and Su apply equally to the Title IX claim asserted here. SPP has pleaded far more than is necessary under Tate to state a claim for sexual harassment. Whether SPP can ultimately prevail on this claim is a question for another day, but the allegations in the complaint suffice to put District 211 on notice. Accordingly, the motions to dismiss are denied as to Count I.
The apparent reason the judge gave an expansive reading to the statute was because he had some case law upon which to hang his hat. Not a complete answer to your question, but district judges are practical when there is case law upon which the Circuit might return the case to you. No such situation with substantive due process.
All the best.
RGK
The funny thing about making it past a MTD on a Title IX claim is that SJ is just around the corner.
SHG,
Such is the life of plaintiff’s lawyers. Beside, who knows what e-mails are awaiting discovery that proves that all the school board members are trans-gender and they hate those who aren’t.
Curious minds want to know. What kind of rifle or are you a revolver type of guy?
I use a Henry pump for that chore. Works fine with shorts, longs, and long rifles.
Totally off topic, but it’s Tuesday, isn’t it?
But this isn’t Tuesday Talk. And even if it was, no.
It does make sense for a district court judge to refrain from expanding substantive due process beyond what SCOTUS has explicitly found. But beside the Title IX complaint, Judge Alonso has also allowed a 1A religious freedom complaint to proceed in this case. I guess that reed is a little fatter.
Of course, if district judges won’t give substantive due process claims a shake, then nothing changes until a case gets to SCOTUS. A lot of lives are affected between now and then.
SHG,
It depends upon the conscience of the district judge. Mine is not easily shocked.
All the best.
RGK
PS If I were the King, I would likely conclude that there is no such thing as substantive due process. But, I don’t see a coronation in my future.
If only you were the King.
but Elvis has left the building.
You should shoot for Emperor, Judge. You get a nicer hat. 🙂
[I know, Scott, I’m off topic. I just couldn’t help myself, this early in the morning]
Curse you for making me realize that every time I’ve argued due process it was procedural due process.
What we see here is the exercise of smashing wokey principles together to find out which is wokier (and therefore, which prevails). If this had been a regular ol’ “Porky’s” type male, no question he could properly have been expelled for Title IX glance-rape and denying the females their educational opportunities via hostile environment. But, as an [Ed. Note] he is exempt, given that the “right to exist” asserted by “advocates” for [Ed. Notes] extends to a “right to require everyone else to concur in [Ed. Notes’] subjective gender perceptions. So, in this case, the over-sensitive cistern were to blame for not correctly perceiving that the male in question was actually one of them. Fie upon their unwokieness, and no rights for them!
Exactly. And had this been Porky’s, would there have been a substantive due process right violated because it shocked the conscience? I bet there would, judicial modesty notwithstanding.
So Porky’s is the wild side of this walk?
I don’t think so… But transsexual/gender-transitioning petting porn selfies from both locker rooms admitted on behalf of the plaintiff’s Supreme brief could be fun. Especially if the transitioning are committed bisexuals.*
Should go down smooth unless youth girls league basketball coaching becomes a thing with adult transsexuals transitioning to female but even that might only be a binary distraction easily resolved if Ruth has the strength to pontificate about yeast infections, folly, frolicking, and beer but only if the jokes do not fly over the heads of some of her colleagues.
Real question is, besides our esteemed host’s memory of early 80’s movies**, what happens when one of todays Porky’s boys faints and knocks his head while peering through the hole. And speaking of heads and holes…on second thought never mind!
P.S. Quasi-related and distinct? I feel gipped… isn’t that the whole reason you big brain bar people get to bill over $500 an hour?
*That usually locks in about the age of 12 or so right?
**Was this a drive-in movie experience or in one of those new, at the time, multiplex theater experiences? And if there was ever a thread to work in multiiplex this was it especially with that lead in.
So, this being about “gender”, these students in SPP don’t feel the same way about LGB’s (of LGBTQ)? I’m confused…
I just wonder how interested in the intricacies of all this we would be if the unclothed females in question had and average age of 66 instead of 16? Or whether or not the original action would have even been filed if said sexagenarians were attending an institution subject to Title IX at the time.
The stakes here aren’t about whether boys can oogle girls, but about morphing the word “sex” into “gender identity,” such that all the statutory protections and substantive due process rules that protect against sex discrimination will apply with the same force and effect against gender identity discrimination. For now, it’s bathrooms and locker rooms. That’s only where it starts. It’s got a long way to go after we get past the most obvious concrete issues into the more complex ones.
Ah. Using Porky’s as a lead in threw me off the scent.
As I’m compelled to remind people regularly, my conversation here started more than a decade ago. Each post is only a tiny slice of a larger on-going discussion.
If gender is a continuum, how far down the continuum towards feminine must a male be before he/she/it/they/xe/co can use the ladies’ room? Can someone with female equipment be banned from it for being too far towards the masculine end?
The “answer” is that each person decides for themselves where they “feel” comfortable. Why their comfort trumps anyone else’s comfort, who can say?