In the juvenile 1981 sex-comedy, Porkys, 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 compelled by the government being 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 Porkys. 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 Porkys’ 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 as to 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
Reconciling Title IX: Visual Bodily Privacy curated from Simple Justice
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