In a weird way, we lucked out with Jessica Yaniv. First, because the story happens in Canada, but second and more importantly, because we’re usually confronted with the easy problems when the critical choices are made, with the harder, more absurd problems, coming only after we’re locked into a position. Yaniv served up the absurd early enough to realize the consequences of foolish policy.
This week, British Columbia’s Human Rights Tribunal (CHRC) — a self-described “quasi-judicial body created by the B.C. Human Rights Code” — held hearings on whether or not female beauticians should be forced to handle male genitalia. The complainant, known until Wednesday under the alias “J. Y.” owing to a court gag order, is Jonathan/Jessica Yaniv, a self-identified transgender woman.
Yaniv has filed 16 different complaints against estheticians in the past year. Yaniv argues that, as a transgender woman, being denied services on account of her gender identity was discriminatory.
Forget about Yaniv, personally, who’s just a train wreck on many levels, and consider instead that the argument, that if one establishes as a matter of law that a transgender woman is a woman in fact, then refusal to perform a procedure intended for persons without male genitalia is logically discriminatory. Even if one can rationalize away the problem under the bathroom paradigm, because what’s the big deal, performing a Brazilian wax on testicles is a different matter. More than that, compelling a woman to do so is a different matter. Usually, it takes a while for crazy to happen, but thanks to Yaniv, it’s already on the table.
David French connects one of the dots that are unavoidably connected:
The Equality Act bans discrimination on the basis of sexual orientation and gender identity in a host of areas, including education, the workplace, and public accommodations. In practice, the Equality Act would operate a lot like the Obama administration’s May 13, 2016 joint statement from the Department of Justice and the Department of Education extending gender identity protections into Title IX.
While most people focused exclusively on which bathrooms could be used, it was patent that bathrooms were only the tip of the iceberg.
According to the Obama administration, schools will now be required to police speech regarding gender identity. School officials are required not only to refer to students by their chosen gender but also, through expansion of nondiscrimination policies, to maintain an “environment” that the administration deems sufficiently “safe,” “nondiscriminatory,” or even “supportive.” This will necessarily require regulating student speech as well. Additionally, the letter not only grants opposite-sex access to locker rooms (including showers), it requires schools with single-sex dorms to allow men access to women’s dorms and to make other “overnight accommodations.” So when schools are arranging accommodations for overnight school trips, boys will be entitled to sleep in the same hotel room as girls.
Indeed, even French didn’t stray beyond the limits of the joint guidance at the time, though the guidance offered only specific examples, but once the wall was breached, there was no longer a way to stop what would inevitably follow.
And it’s not merely a matter of the bureaucratic guidance, which was issued to circumvent Congress’ refusal to adopt sexual identity as a form of prohibited discrimination, but was followed up by lawfare in the hope of getting the Supreme Court to hold that “sex,” as set forth in the various titles of the Civil Rights Act of 1964, as amended, included sexual identity. If that could be accomplished in the relatively benign instance of allowing a transgender student to use the bathroom of choice, there would be no stopping the consequences.
So, if we accept that gender identity discrimination is sex discrimination, and that it applies to all entities subject to Titles VII and IX, consider this hypothetical:
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.
In reaction to the Yaniv story, a random fellow on twitter related his own tales of being called transphobic for their refusal to date a “sexy woman with a penis.” Is it transphobic, or is a man entitled to not have sexual desire for a person with a penis? Is a woman allowed to prefer one to a vagina? Is a woman allowed to do her job as esthetician without being compelled by law to touch a male scrotum? Who would have imagined these would be legitimate questions to ask?
There is nothing phobic about any of these issues or questions, even if it’s become the “go-to” epithet to shame otherwise decent people into silence and, if people like Yaniv get their way, compliance. This isn’t remotely similar to the issues with discrimination for sexual orientation, as we are confronting physical thing that exist, even if some prefer to live in fantasy where sexual identity makes a male penis magically invisible or, as Yaniv would have it, magically subject to a Brazilian wax.
There is nothing about facing reality that suggests discrimination against transgender people should be allowed or tolerated. Be as transgender as you like. But unlike sexual orientation, which involves no one who doesn’t choose to be involved, the Yaniv story pushes the false narrative to the place where it needs to be, and would inevitably be soon enough.
Pretending physical reality doesn’t exist, conflicting rights don’t conflict, isn’t going to resolve the clash of fact and fiction that was bound to happen. At least Yaniv did us the favor of shoving her testicles in our faces before we made the choice of grounding law in woke fantasy.