smac97

Hmm. You went from "intermediate" to "strict" scrutiny in less than a day. I asked Grok: "How do you think the Hodes decision in Kansas may apply to a challenge to the Kansas law regarding sex-segregated bathrooms?" The response: I will be interested to see how far the Kansas Supreme Court is willing to go regarding the constitutional right to "personal autonomy." There must be some constraints on this principle. Thanks, -Smac

Okay. Okay. Seems like the negation of sex-segregated spaces, since what counts as "passing" and what does not is almost certainly unworkable. What about just a regular guy, not a man dressed and "passing" as a woman, but a straight-up man? Don't see how to exclude them. Thanks, -Smac

We're at a pretty pass when I have to ask you to clarify what you mean by "men" and "women." I think many women and girls do not want men in women's bathrooms. I think plenty of men feel the same about women in men's bathrooms, but less due to safety concerns and more due to privacy/dignity concerns. Okay. Glad we cleared that up. Thanks, -Smac

"Background" about abortion? How does that relate to sex-segregated bathrooms? Yes. We should expect to see varying constitutional analyses in the state appellate courts. I'm not sure why you are bringing up abortion or the "religious right's" efforts pertaining to it. Could you clarify how this is relevant to sex-segregated bathrooms? "This" being sex-segregated bathrooms? Oddly, the Kansas legislature has apparently attempt to enact a statute setting the level of constitutional analysis is set by statute: I haven't looked into this, and I have no experience with Kansas jurisprudence, but it seems almost axiomatic that under basic separation-of-powers principles, the judiciary, not the legislature, determines what standard of review the state constitution requires and whether a particular law satisfies it. A statute can supply definitions, substantive rules, and legislative findings, but it cannot dictate to the courts the applicable constitutional test or compel a finding that the test is met. That said, I think you "it's all political" approach to jurisprudential thought is not a reliable thing. Moreover, because the statute on its face differentiates based on sex, it necessarily requires strict scrutiny. There are three standards: (1) the rational basis standard, which requires only that the enactment bear some rational relationship to a legitimate state interest; (2) the heightened or intermediate scrutiny standard, which requires the enactment to substantially further an important state interest; and (3) the strict scrutiny standard, which requires the enactment serve some compelling state interest and be narrowly tailored to further that interest. The determination of which of the three standards applies depends on the nature of the right at stake. The second on applies. Generally, under intermediate scrutiny, a law or government action must serve an important (or significant) government interest, and the means used to achieve that goal must be substantially related to the interest. The government holds the burden of proof to justify its action. I asked Grok to take a stab at guessing how things will turn out: We'll see. Interesting that you keep attempting to frame litigation in provocative, slanted terminology. Anyway, in March the court in Doe "denied a requested temporary restraining order to block enforcement of the law": More here: While certainly not definitive, that the plaintiffs' failure to establish a substantial likelihood of prevailing on the merits of the underlying claims (the article above references "successful likelihood," but that may be a typo) would not normally be encouraging to the plaintiffs. In cases such as this there really isn't a factual dispute, but rather the dispute pertains to constitutionality. If they could not demonstrate a likelihood of prevailing at the outset of the case, I'm not sure much will change in the future. Yes, we'll see. Sex-based separations in bathrooms, locker rooms, and similar facilities have long been treated as constitutionally permissible. Federal courts in recent years have generally upheld biological-sex rules in analogous settings (schools, prisons, etc.), and the U.S. Supreme Court’s 2025 Skrmetti decision applied only rational-basis review to a related transgender regulation. Thanks, -Smac

What transgender men/biological women? You don’t think they have difficulties using women’s restrooms, they won’t be harassed, recorded, threatened as well? (Maybe not physically threatened on that moment, but put at risk by being recorded, doxxed, etc)? I think I have addressed this at substantial length. "The discomfort that can arise in edge cases under a sex-based rule is real. I acknowledge that." "The awkwardness that can create for the individual woman who has chosen to present herself as being male (or vice versa) is real. So is the alternative of letting identity or presentation override sex, which creates a different and broader set of costs for the people the female (or male) category was created to protect, and it eliminates any stable limiting principle." "Highly masculinized females remain female under a sex-based criterion; they use the women’s facility. The awkwardness that can arise in those edge cases is real. It is still a different—and smaller—problem than admitting anyone into women's space on the basis of subjective identity or appearance (or not even based on that)." "The discomfort this creates for some individuals who present or identify differently is real, but it does not require us to redefine the category or surrender the boundary" "I acknowledge that rule will sometimes produce awkward situations for people whose appearance does not match their sex. That is a real cost. But then, the alternative rule (access according to self-identification) also produces costs: loss of privacy, safety concerns, and competitive unfairness for the group the spaces were created to protect." "In short, the policy requires people to use the facility that matches their sex. Residual social friction for a small number persons is a genuine downside worth managing with good complaint procedures and common sense. But I think it is not a reason to abandon the sex-based boundary that protects the group for whom the spaces were created: women and girls." "Sex-segregated spaces are created and maintained for the benefit of women and girls, or half the population. I think the Kansas legislature passed the law to benefit woman and girls. Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men." "The awkwardness that can create for the individual woman who has chosen to present herself as being male (or vice versa) is real. So is the alternative of letting identity or presentation override sex, which creates a different and broader set of costs for the people the female (or male) category was created to protect, and it eliminates any stable limiting principle." "A consistent sex-based rule will sometimes create awkward or painful situations for people whose appearance or identity diverges from their sex. That is a genuine cost, and practical accommodations (single-occupancy options, etc.) can reduce it without erasing the boundary. But the alternative rule, access by self-identification, imposes a different set of costs on the far larger group for whom the spaces were created, and it removes any stable limiting principle. Once sex is no longer the criterion, there is no coherent basis for excluding any male." "On the specific example: a sex-based rule does mean that a female person who has taken steps to appear male still uses the women’s facility (or a single-occupancy option where available). That can be awkward for the individual. The alternative rule of letting identity or appearance control means male people who identify or present as female, and anyone else as well, gain access to women’s facilities. That creates a different set of costs, borne by the women the space was created to serve, and it removes any stable way to exclude males who might exploit the rule." "So as between the seemingly competing and incompatible interests and preferences of (A) biological women and girls and (B) biological males who, having taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as women, which set of interests and preferences should prevail? In my view, I think the prevailing group should be the one for whom sex-segregated spaces were created: biological women and girls." It appears that we differ in a few things, but we both acknowledge that the Kansas law can have some adverse effects on men who "identify" as women and so want to enter women's bathrooms. Where we differ is whether the alternative approach has some adverse effects on women and girls (for whom sex-segregated facilities were intended to protect). Thanks, -Smac

These are value judgments about which reasonable minds can and do disagree. I don't recall saying you "{don't} care about the integrity of data." You cannot or will not define what a "woman" is. You conflate actual women with men who, having taken cosmetic, medical and sartorial measures to deliberately appear as a woman, "identify" as, and become, a woman. Your position requires society to radically re-define "woman." Again: I do not share that premise. I take “woman” to mean adult human female. On that understanding, a male who identifies as a woman remains male. Admitting him to women’s facilities is not an act of recognition, but instead is the abandonment of the sex-based boundary that justifies the facilities in the first place. The discomfort this creates for some individuals who present or identify differently is real, but it does not require us to redefine the category or surrender the boundary. And the alternative is to create problems and impositions on women and girls, for whom bathrooms and other sex-segregated spaces are intended. It was done by the Kansas State Legislature. I think we're mixing issues again. First, clinical care. Good doctors do rely on the full medical history, current anatomy, hormones, and relevant labs—not on the letter printed on a driver’s license. No serious argument says otherwise. The license marker is not a substitute for a chart. It is a basic administrative and identification field that is also used outside the exam room: for screening in sex-separated spaces, for records that feed population data, for matching to prior medical and legal history, and for ordinary verification. Saying “doctors should look at the whole history” does not answer whether the underlying sex marker itself should be accurate. Second, data. If the claim is that recording the person as “Female” does not enhance the data, that cuts against self-ID, not in favor of it. Actuarial, epidemiological, and clinical datasets are useful only to the extent the categories track the biological and physiological differences that actually drive risk, drug response, disease prevalence, and outcomes. Sex is one of those variables. Replacing it with an identity label that can diverge from sex introduces noise precisely where sex is the relevant covariate. An actuary who needs reliable sex-stratified data is not helped by a system that treats the marker as a self-reported preference. "Trust doctors to read the chart: is not a reason to make the official sex marker inaccurate, nor is it a reason to claim that calling a male “Female” improves the data. If anything, the actuarial point runs the other way—categories that no longer track sex make the data worse for the purposes for which sex is recorded. You being an actuary, I am curious. Here is my understanding: Actuaries price and reserve on the basis of factors that demonstrably correlate with claim costs. Sex is one of the strongest and most persistent of those factors in mortality, certain morbidity, and some casualty lines (especially young-driver auto). Male and female populations show different average life expectancy, different patterns of cardiovascular disease, cancer, disability, and (at younger ages) accident frequency/severity. Those differences are biological and behavioral in origin; and are therefore not created by the gender marker on a license. Are these substantively accurate statements? Continued: If a risk truly varies by biological sex, recording or pricing a biological male as “female” (or vice versa) does not improve the data—it introduces misclassification error. For example, hormone therapy and surgery change some risk factors (e.g., certain hormone-dependent conditions, thromboembolic risk) but do not rewrite the entire sex-based risk profile. Where the carrier has credible experience or medical evidence that a transitioned person’s residual risk now more closely resembles the identified sex, some will adjust. Where it does not, birth sex (or a substandard rating that reflects the actual medical history) remains the more accurate approach. Broadly speaking, actuaries do not treat “identifies as a woman” as automatically equivalent to “is female for risk purposes.” Practices differ by product, carrier, and jurisdiction. When sex is a material rating factor, the safer and more common actuarial default is still biological sex / sex at birth, supplemented by individual medical underwriting. Self-identified gender is used more often when required by law, by document-matching convenience, or when the carrier has decided the residual risk difference is small enough to absorb. I am really out of my field here, hence my request for your input. From the outside looking in, I would think that from a pure data-quality standpoint, if the risk varies by sex, labeling a person according to subjective "self-identity" rather than sex reduces, rather than enhances, the usefulness of the classification. How do you, in your professional capacity as an actuary, define "woman"? As you like. It is interesting to me that the two women I have spoken with about this topic in recent days - my wife and my sister - agree with me. Or is that perhaps a "faulty generalization"? I'm not sure we have good data. It seems like surveys/polls are carefully drafted to not address the presence or absence of limiting principles. For example, if the question were "Would you support a law that essentially eliminates sex-segregated bathrooms, changing rooms, etc.?", I think quite a few, perhaps the majority, would say no. Or "Would you support a law that allows anyone who looks or acts or subjective 'self-identifies' as a woman to enter into women's bathrooms, changing rooms, etc.?", I think there would be a lot of people opposing this. I would be interested in any data you have on this. For example, I found this report by YouGov, but it is about "gender neutral toilets," not "men in women's bathrooms." Moreover, the split seems to vacillate over time. Moreover, the methodology is questionable. YouGov uses an online opt-in panel rather than random telephone sampling. My understanding is that opt-in panels can skew results or attract insincere respondents on rapid-turnaround cultural topics. I agree. You may be wrong. A space in which any male for any reason can enter into women's spaces, with no limiting principles at all, is not "segregated" in any meaningful sense. Yes, I acknowledge we disagree. I am not in the Kansas State Legislature, nor did I have anything to do with its approach to sex-segregated bathrooms. I do agree with it, though, and find it reasonable. You do not. Such are the vicissitudes of living in a pluralistic society. I would prefer if you were refrain from personalizing this thread, as you have done many times now. But so far I think we've managed to stay on topic despite those efforts. I'm glad of that. I agree. Where we disagree is what sort of preemptive/prophylactic measures a jurisdiction can/should deploy to mitigate the risk of these things happening. We also disagree in that you appear to focus overwhelmingly on what one of several grounds I have cited. You haven't "established" anything either. This is just an informal discussion about public policy. And yet you oppose any "limiting principles" designed to keep such facilities "sex-distinct." I disagree with you on this point, as i think limiting principles are important. I also think biological sex is a very good, and perhaps the best (in terms of public policy and enforcement), limiting principle. I don't think they do. That a man may go to great lengths to pass as a woman does not make him one. And vice versa. So the general rule of biological sex is reasonable. I also think that some particularized exemptions/exceptions for people with DSDs would be reasonable. Where we disagree is whether the entirety of the male population should be able, for any reason or no reason at all (there being no coherent limiting principles under your preferred regime), be allowed by law to enter into women's bathrooms. Thanks, -Smac

At this point, this is probably the closest to my actual position if you are interested in that, smac. It is not what I am currently exploring though. I also recognize that for many “appearance” counts as what someone “does”, so not sure how to achieve this. How do you imagine a state law would be drafted so as to allow everyone into women's bathrooms except those who enter the bathroom, do something "that is making people uncomfortable," and then have a legal process whereby a judge enters an order stating "they should not be allowed to use the {women's} facilities" in the future. From a public policy position, I don't think CB"s proposal works. Thanks, -Smac

Some points need separating: First, prevalence. You say the people you know who have transitioned “fall very close in line” with the highly masculinized photos and that this is “the vast majority.” That may reflect the circles you move in. It is not the general picture. Many people who identify as transgender have not undergone extensive testosterone use, surgery, and permanent masculinization of the kind shown in those images. Presentation varies widely. Even if a large share of the subset who medically transition do end up looking highly masculine, that still does not convert the policy question into an appearance test. The rule under discussion tracks sex, not how successfully someone has approximated the opposite sex’s appearance. Second, the purpose of the rule. A sex-based boundary is not a law “against a class of people simply because how they look is uncomfortable for some.” It is a rule about which sex uses which multi-occupancy facility in settings that involve undress and vulnerability. The interest it serves is the long-standing one that justified sex separation in the first place: privacy and safety patterns that track sex. Conduct rules against harassment, voyeurism, and assault remain necessary and should be enforced against anyone. They have never been treated as a complete substitute for the boundary itself. We do not eliminate sex-separated changing rooms, shelters, or restrooms on the theory that “only bad behavior matters.” You argue that a sex-based rule has “the opposite effect” of making women feel safe if highly masculinized females are directed to the women’s room. I am not persuaded that you are speaking on behalf of women and girls who want sex-segregated bathrooms. Moreover, I think your comment misstates the rule. Highly masculinized females remain female under a sex-based criterion; they use the women’s facility. The awkwardness that can arise in those edge cases is real. It is still a different—and smaller—problem than admitting anyone into women's space on the basis of subjective identity or appearance (or not even based on that). Replacing sex with either self-identification or a pure looks-based test does not eliminate discomfort or risk; it relocates and, for many women and girls, increases it. “There are way too many variables to simply judge by a birth certificate” is a reason some people prefer self-ID or case-by-case appearance judgments. It is not a demonstration that sex is an irrational or purely aesthetic criterion for these spaces. Sex is the characteristic the facilities were separated on. Edge cases (including people with DSDs and people whose appearance is ambiguous) can be handled with ordinary judgment and fair process. They do not require abandoning the category that organizes the rule for everyone else. Third, your comment here: "If in fact there is ANY person, male or female transitioned or cis is doing things in any restroom that is making people uncomfortable then they should not be allowed to use the facilities." That standard sounds reasonable until you try to operate a restroom under it. “Making people uncomfortable” is not a workable access rule. Discomfort is subjective, varies by person, and can be triggered by ordinary presence, appearance, disability, age, or nothing more than nervousness. A rule that turns on whether someone is “making people uncomfortable” gives no clear notice of what is prohibited, invites selective or viewpoint-based enforcement, and collapses into complaints about who “belongs” rather than about discrete misconduct. Sex-separated facilities already exist because the setting involves undress and vulnerability. The boundary is categorical: it reduces the occasions on which those privacy and safety interests are implicated. Conduct rules against harassment, voyeurism, loitering, recording, or assault remain necessary and should be enforced against anyone. They are not a substitute for the boundary itself. We do not eliminate sex separation in changing rooms, shelters, or multi-stall restrooms on the theory that we can simply eject whoever makes someone uncomfortable after the fact. If the proposal is that facilities should be open to all and that only proven bad acts justify exclusion, that is a policy choice—one that abandons sex as a criterion. It is not the same as saying the current design is irrational or that discomfort is the only legitimate concern. The disagreement is whether the category still matters. Treating every access dispute as a pure conduct case does not resolve that disagreement; it assumes one side of it. In short: the photos show that some females can look very male. That fact is not ignored. It simply does not establish that the proper response is to drop sex as the criterion and rely only on after-the-fact policing of “bad behavior.” The disagreement remains whether the category still matters. That is a substantive dispute, not a failure to notice that transition can change appearance. Thanks, -Smac

Neither of us is "trying to legislate anything." Both of us are commentating about the the Kansas legislature and other lawmaking bodies should do in relation to men in women's bathrooms. I appreciate your perspective. For my part, you have failed to make the case for why laws like the one in Kansas are unnecessary, or why they should not be enacted, etc. I am taking the position, which I also think is "extremely practical," which endorses biological sex as a limiting principle as pertaining to men going into women's bathrooms. Reasonable minds can disagree about such things. But it is arguing from the margins, so it amounts to the same thing. Sex-segregated spaces are created and maintained for the benefit of women and girls, or half the population. I think the Kansas legislature passed the law to benefit woman and girls. Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men. I think it is reasonable for the Kansas legislature to do what it did. I'm okay with that. You haven't convinced me of the merits of your position either. Respectfully, I think this needs to be demonstrated, rather than assumed/demonstrated. From one of my posts on Friday: IIRC, you did not address these, and are now simply declaring that they don't exist at all ("doesn't hurt anyone"). I don't think you are situated to speak on behalf of women and girls. I think many, likely most, women and girls have reasonable expectations of privacy and dignity, and to not to share bathrooms, locker rooms, changing areas with the opposite sex. You decline to recognize violations of privacy and dignity as "harm." I think many, likely most, women and girls view males, as a group, as committing the large majority of sexual assaults, voyeurism, and exhibitionism, such that prophylactic measures - such as sex-segregated facilities - reduce opportunities for male-pattern offenses in spaces where women and girls are vulnerable. You decline to recognize the elimination of sex-segregated spaces as "harm." Women’s shelters, prisons, sports teams, and certain schools or organizations were created to serve females as a class. Allowing males to enter on the basis of identity undermines the purpose of those institutions and the ability of women to associate on the basis of sex. You are declining to recognize this as "harm." Loss of sex-separated spaces can increase anxiety, reduce participation (especially in sport and school activities), and signal that female boundaries are secondary to male identity claims. You are declining to recognize this as "harm." I think that description is incomplete. The primary practical function of a restroom is, of course, to allow people to relieve themselves. But the reason public restrooms in this country (and most of the world) have long been separated by sex is not that society was indifferent to who else was present. Sex separation exists precisely because these are spaces that involve partial undress, vulnerability, and physical proximity. The design choice reflects a judgment that privacy, safety, and comfort interests differ systematically by sex, especially for women and girls. If the only purpose were “a place to use the bathroom,” unisex multi-stall facilities would have been the historical default. They were not, and still are not. Single-sex multi-occupancy restrooms became the norm because people, particularly women, valued not having to share that intimate setting with the opposite sex. The “guarantee” of sex separation is not an accidental side effect; it is the point of the architectural and legal convention. You can argue that the privacy and safety interests are overstated, or that self-identification should now override them. Those are substantive claims worth debating. But it is not accurate to treat sex separation as irrelevant to the purpose of the facility. The purpose has always included both the functional need to relieve oneself and the conditions under which that occurs. The argument treats the only legally relevant question as discrete misconduct (harassment, voyeurism, assault). I think that is too narrow. Sex-separated restrooms exist because the setting itself involves undress, vulnerability, and enforced proximity. The boundary is not solely a back-end enforcement tool against bad actors. Instead, it is a front-end design choice that reduces the occasions on which those risks and privacy costs arise. We do not wait for a documented assault in every locker room before maintaining sex separation, any more than we wait for a documented assault before maintaining sex separation in shelters, prisons, or changing areas. The category is the point of the rule, not an irrelevant side issue. “Discomfort is not harm” understates what is at stake for many women and girls. The interest being protected includes the ability to use a multi-occupancy facility without the presence of men while in a state of partial undress. That interest has long been treated as legitimate in law and social practice. Calling it mere “discomfort” reframes a privacy and safety claim as mere subjective sensitivity so it can be dismissed. On evidence: the claim that there is “no actual problem” is contested. There are documented incidents of males accessing female facilities and committing offenses. I provided a list of reported instances, which I think you have not addressed at all: Judge Rules Loudoun County Teen Sexually Assaulted Female Student in Girls' Bathroom (2021) 6 Men Who Disguised Themselves as Women to Access Bathrooms (from 2016) Transgender woman arrested for voyeurism at Ammon Target (2016) Man Dressed as Woman Arrested for Spying Into Mall Bathroom Stall, Police Say (2015) Cross-Dressing Man Secretly Taped Women at Macy’s (2013) Sex offender posed as woman, went into women's locker room Man Undresses In Front Of Children In Walmart Restroom (2010) Purdue police investigate report of man taking photographs in women's restroom (2008) Sexual predator jailed after claiming to be ‘transgender’ to assault women in shelter (2014 in Canada) ‘Transgender’ man may continue using girls’ locker room, says college (2012) I don't know how you can reconcile these incidents with your "no harm" argument. There are also surveys and testimony from women and girls about reduced willingness to use facilities, sports changes, and shelters when men are present. One can debate the frequency and weight of those incidents. One cannot accurately say the policy concern is invented out of thin air or that the only permissible legal response is after-the-fact prosecution of discrete crimes. The framing “a transgender woman is simply going in to pee” assumes the conclusion that sex is irrelevant and only current identity and immediate intent matter. That is the policy dispute, not a foregone conclusion. A sex-based rule says biological sex remains the relevant criterion for these spaces precisely because the physical and privacy stakes track sex, not self-description. You can reject that criterion; you cannot treat its rejection as self-evident while demanding that the other side alone supply overwhelming proof. As we are concluding the discussion, I won't say anything else except to thank you for sharing your thoughts and perspective. Thanks, -Smac

Another example of compelled speech: Universities threaten students with investigations, disciplinary actions over 'deadnaming' I think the State and its extensions should not regulate speech as to either "preferred pronouns" or "deadnaming." "{E}ncouragement is different from requirement." Yes. Thanks, -Smac

I mean those who actually look like men but are biologically female. Okay. Thank you for the clarification. The people you are referencing are: Women who have taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as men; AND Women who have not taken these measures, but who happen to nevertheless approximately "look like men" in some other sense. Is that a fair summary of your position? The photos don’t refute a sex-based rule; they illustrate why appearance is a poor substitute for it. Some biological females who have taken testosterone and undergone surgery and who wear "men's" clothes can look highly masculine—sometimes more so than many males. That is not in dispute. The same is true in reverse: some biological males who present femininely can look highly feminine. Visual ambiguity exists at the margins, and it can be intentional or otherwise. A sex-based policy does not claim that every person is instantly and infallibly sortable by glance. It claims that the relevant criterion for access to sex-separated spaces is sex, not current appearance or self-identification. Most people are not at the extreme tail of medical transition (such as those in the pictures Analytics is posting); the ordinary visual and social cues that have always operated in these spaces continue to work for the large majority. Edge cases can create awkwardness or require secondary confirmation. That is a real cost. It is not a reason to replace the sex criterion with either self-ID or a pure “who looks masculine/feminine enough” test. If the rule tracked appearance instead of sex, then highly masculinized females would be directed to the men’s room and highly feminized males to the women’s room. That is a different policy with its own set of problems. The sex-based rule does not require that outcome. It requires that people use the facility that matches their sex, while acknowledging that a small number of cases will be visually ambiguous and must be handled with ordinary judgment and fair process. The phrase "legislate from the margins" generally describes a political or advocacy approach where laws, policies, or ordinances are driven by, or focused on, the periphery of an issue or the underserved groups at society's edge, rather than catering primarily to the political or cultural mainstream. I sense that Analytics wants to this, and you may as well. However, most legislative enactments are intended to address an issue as it applies broadly, not as it applies to situations at the extreme edges. For those extreme edges, some exceptions can be made, such as people with DSDs. In short: yes, some transitioned females look very male. That fact does not convert a sex-based boundary into an appearance-based one, nor does it make sex an irrational criterion for spaces that exist because of sex-based patterns of privacy, safety, and vulnerability. I appreciate you sharing your thoughts. Thanks, -Smac

Have you ever taken one of those personality tests that tries to give you insights into why you are the way you are? You have made a number of attempts to steer the discussion about the topics - the Kansas law, men in women's bathrooms, etc. - toward inquiries and critiques of me as a person, my motives, and so on. I’m happy to keep the discussion on the policy itself: whether sex or identity should be the criterion for these spaces. Personality diagnostics aren’t required for that. Thank you, but I am not interested. I would prefer to discuss the topic(s) at hand. Thanks, -Smac

But if the point of the law is to increase both the safety and the perception of safety for women and girls in general, Yes. Here you refer to women who have taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as men, correct? The category of persons excluded from women's bathrooms under the Kansas law is: males. A statistically small percentage of males have taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as women. However, the Kansas law is categorical, and so does not apply only to these men. Your question assumes the policy requires people who “look predominantly male” to use the women’s room. That is not what a sex-based rule does. A sex-based rule requires people to use the facility that matches their sex. Biological females use the women’s facility; biological males use the men’s. Appearance is not the criterion. Most biological females do not look predominantly male, and the ordinary social and visual cues that have always operated in sex-separated spaces continue to function. I acknowledge that edge cases exist, that is, biological women who are tall, broad-shouldered, have a deeper voice, or otherwise present in ways some people may find ambiguous. Those individuals can encounter awkwardness or unfair scrutiny under any system that notices sex. That is a real cost, and it should be acknowledged, and I do. However, it does not convert the rule into a requirement that males use the women’s room, nor does it erase the reason the spaces were separated in the first place. The safety and privacy interests that justify sex separation are tied to sex-based patterns of strength, criminality, and vulnerability in spaces involving undress, not to a pure "appearance" test. A rule that tracks sex still serves those interests for the large majority of women and girls even if a small number of females occasionally draw second looks. Replacing the sex criterion with self-identification or appearance would admit men into the space, which is the outcome the safety rationale is meant to avoid. In short, the policy requires people to use the facility that matches their sex. Residual social friction for a small number persons is a genuine downside worth managing with good complaint procedures and common sense. But I think it is not a reason to abandon the sex-based boundary that protects the group for whom the spaces were created: women and girls. Thanks, -Smac

The Constitutionality of the law itself matters, too. You are quite right. I think we may differ on what the outcome of a constitutional challenge might be. Not really. Difficult, perhaps. But not "impossible." Do you think women and girls who want sex-segregated bathrooms, but who are in jurisdictions which allow men de jure or de facto access to women's bathrooms are "in an impossible situation"? I would like to better understand what you are saying here. "{T}hey'll predictably need to explain to terrified women and cops that they are 'women'" because they (the women in your photos) look like men, right? Aren't women being "terrified" about men in women's bathrooms now? Consider a situation where (A) people who look like men and (B) are actually women going into women's spaces which (C) "predictably" results in "terrified women," which circumstance (D) you presumably feel is problematic. Am I correct in understanding your position? Alternatively, consider a situation where (A) people who look like men and (B) are actually men going into women's spaces which (C) also "predictably" results in "terrified women," which circumstance (D) you presumably feel is not problematic. Again, am I correct in understanding your position? Yes. So as between the seemingly competing and incompatible interests and preferences of (A) biological women and girls and (B) biological males who, having taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as women, which set of interests and preferences should prevail? In my view, I think the prevailing group should be the one for whom sex-segregated spaces were created: biological women and girls. In your view, I surmise that you feel that the opposite should hold, or else that there should be no legal steps taken at all. Is that a fair characterization? The ACLU of Kansas statement is advocacy rhetoric, not a developed legal brief. Its core constitutional assertions are: The law constitutes “governmental overreach” that the Kansas Constitution protects against. It undermines “strong constitutional protections” and subjects people to “unacceptable privacy violations.” Discriminatory laws of this type “violate the fundamental rights guaranteed by the state constitution.” AFAIK, a freestanding “right to use the restroom matching one’s gender identity” has not been recognized as a fundamental right under the U.S. or Kansas Constitutions in a way that would trigger strict scrutiny for this kind of rule. I assume the ACLU will be making an "Equal Protection" argument, namely, that the the law classifies on the basis of transgender status and therefore requires heightened constitutional scrutiny. I'm not sure that works. The Kansas law classifies on the basis of biological sex (not "gender identity"), which is an established, constitutionally permissible basis for separating intimate facilities and for recording sex on identity documents. Whether intermediate scrutiny applies, and whether the state’s interests in privacy, safety, and accurate identification satisfy it, is the real legal battleground. Multiple federal circuits and state courts have upheld analogous sex-based facility and records rules, while some others have been more skeptical. The issue remains unsettled at the Supreme Court level in the precise posture of bathroom access and driver’s-license markers. Sex classifications typically receive intermediate scrutiny. The state interests in bodily privacy, safety in spaces involving undress, and administrative clarity are, I think, the kind of interests the Court has historically treated as important. A SCOTUS majority would probably find those interests sufficiently served by a sex-based rule and uphold it. The Court is unlikely to hold that “gender identity” itself is a suspect or quasi-suspect classification requiring heightened scrutiny across the board. United States v. Skrmetti (2025) is the clearest signal. The 6–3 majority (Roberts, joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) held that Tennessee’s restrictions on certain medical interventions for minors did not classify on the basis of sex or transgender status in a way that triggered heightened scrutiny. The Court applied "rational basis" review and upheld the law. Critically, it declined to treat transgender status as a suspect or quasi-suspect class and rejected the broadest readings of Bostock v. Clayton County (2020) outside the Title VII employment context. I guess we may need to wait and see. Thanks, -Smac

The compilation of video screen caps was fairly off-the-cuff. But your correction/clarification is noted. It does not seem to affect the overall point, namely, that legislatures are justified in passing laws prohibiting males from entering women's bathrooms. I don't think I have done that. You are probably right. It's a term of art that typically refers to action taken with the appearance or pretense of legal authority, but usually by a state actor. In hindsight, using it for private individuals who are simply taking advantage of a permissive policy or the absence of a prohibition arguably stretches the phrase beyond its ordinary meaning. Some better ones: “pursuant to policy” or “under the governing policy” “with the permission of current policy” “as permitted by the applicable rules” / “as permitted by law” “under a self-identification policy” “because the jurisdiction has adopted identity-based access rules” “in the absence of a sex-based restriction” “by institutional permission” “under rules that treat self-identification as sufficient” The underlying point remains the same: In the absence of laws enacting limiting principles, and under your preferred laissez fair regime, a jurisdiction - in a de jure or de facto sense, would effectively allow anyone to lawfully enter into women's bathrooms. I think there are a lot of women and girls, based on safety and dignity and privacy concerns, who do not want men in women's bathrooms. And given that a jurisdiction needs to address such matters at scale, a statutory approach is reasonable. I hope that clarifies things. I am not sure if you want to continue the discussion. I am open to doing so if you are, but perhaps the discussion has run its course. We have both expressed our viewpoints. And although you have not persuaded me to your point of view, I do feel that I have a better grasp of it. There is value in me listening to you explain your conclusions and the reasoning and evidence you are using to reach them. I hope you feel the same way. This is a difficult topic. Although we continue to substantively disagree, we have mostly expressed that disagreement with civility and decorum. I appreciate that. Thanks, -Smac

Those are fair practical questions. A sex-based rule does not require every woman to carry proof or submit to interrogation as a routine condition of using the restroom. In ordinary operation the rule works the way sex-separated facilities have long worked: clear designations, social expectation, and response when someone is observed to be out of place. Most uses never involve any challenge. When a challenge occurs, the person who is actually female is not required to “prove she is not transgender”; the relevant fact is sex. In the large majority of cases that is resolved by ordinary observation or, if necessary, by the same kinds of identification already used in countless other contexts (driver’s license, etc.). The law does not create a standing obligation for every woman to litigate her sex at the door. That said, edge cases exist (is the case for most laws). Women who are tall, broad-shouldered, have deeper voices, or otherwise present in ways some people find ambiguous can face awkward or unfair scrutiny under any system that notices sex. A sex-based statute does not invent that social friction; it can, however, become the occasion for it if people weaponize complaints. Good implementation therefore matters. I think complaint processes will require more than a vague suspicion, institutions will train staff to handle reports proportionately, and repeated bad-faith complaints should carry consequences. On the private right of action and the $1,000 figure: any private enforcement mechanism can be misused. That is a design issue worth taking seriously. Whether Kansas’s specific drafting is well-calibrated on those points is a legitimate subject for debate and, if needed, refinement. The possibility of misuse does not by itself prove the underlying sex-based rule is unjustified; it is an argument for careful enforcement design. In short, the day-to-day expectation remains ordinary use of the facility that matches sex, not continuous self-defense of one’s sex. Edge-case friction and the risk of opportunistic complaints are real issues to manage (though candidly, I think risk of misuse of the statute is low). They are not unique to this law, and they are not a reason to replace a clear sex-based boundary with an identity-based one that has no stable stopping point. Thanks, -Smac

It's not a bounty. It's a private right of action.

Or you could have asked. I culled them from YouTube videos of men in women's bathrooms. I think the pictures demonstrate a few things. First, I think the overwhelming focus on "trans" persons in bathrooms is about men going into women's bathrooms. Far less attention is paid to the reverse situation of women who identify as "trans men" going into men's bathrooms. I have a few thoughts as to the basis for this asymmetry. Second, over a number of posts you have posted numerous photos of women who identify as "trans men," apparently with the presupposition that they are a more important issue than the first item above (and/or to distract from the first item above). I posted pictorial examples of men caught in women's bathrooms because, well, that's the primary area of concern. I'm not sure that your pictures support your position in the way you apparently intended. I think many women and girls oppose men in women's bathrooms, but they are being subjected to it in many places anyway. Some jurisdictions, such as Kansas, are prioritizing the interests of women and girls over the interests of a much, much smaller group of persons (women who "identify" as men). Again: Sex-separated bathrooms, locker rooms, shelters, and prison units exist because of persistent differences in strength, patterns of sexual offense, and the reasonable expectation of privacy from the opposite sex. These are not arbitrary preferences. They are responses to material realities that affect safety, fairness, and dignity at scale. Third, the pictures I posted are comprised of a variety of men caught in women's bathrooms. Some are apparently self-identified "trans women" (including, e.g., Lily Tino) : We can't really say if they are "trans women" because, well, there is no way to objectively differentiate between A) men who "identify" as "trans women" and B) men who may or may not so identify. We've had this "whatever the individual declares about his/her 'gender identity' is correct, and there is to be no questioning of it" rule drilled into the public consciousness for years: The above pictures demonstrate the lack of any functioning and coherent "limiting principles," which in turn may explain why some jurisdictions, such as Kansas, have elected to create a coherent limiting principle: biological sex. Other pictures were less clear about "trans" identity, and perhaps showed instances of bad actors going into women's bathrooms: We really don't know whether any of these men is "trans," do we? After all, all they have to do is say "I identify as a woman" or "I am a trans woman" and they fit within what I understand to be your preferred laissez faire "anyone can do whatever they want" approach to allowing access to women's bathrooms. In fact, they would not even need to bother with the "trans" identity thing at all, since you reject any limiting principles re: men going into women's bathrooms, and you would instead have society allow anyone to go in under the color of law. The Kansas legislature, recognizing this, and also recognizing that bad actors could, under color of law, enter into women's bathrooms, and so decided to apply a limiting principle, namely, biological sex. I agree. Here is where I disagree. I think there are plenty of women and girls who find men in women's bathrooms "objectionable" (see, e.g., here and here). I believe so, yes. Any person can use such a claim, or else the "I identify as a woman" one, or else use no claim at all (since, again, you reject any coherent limiting principles) as a basis for entering into women's bathrooms. And there is no way to differentiate legitimate and illegitimate claims because these claims are almost always internal and subjective. I think women and girls are entitled to have safety among their concerns about men going into women's bathrooms. Do you think otherwise? I think there is a lot of disagreement about men going into women's bathrooms. Unfortunately, some of that may spill over into anger, or even "hate" in some quarters. While anger at overtly bad acts is understandable, a society of laws must govern by law. And what counts as "bad acts" is going to vary a bit (I think plenty of folks think that men entering into women's bathrooms is inherently bad/improper). In any event, if a man is caught doing something nefarious, or suspected of doing something nefarious, then he ought to be treated like any other person under the law. Yes. And your preferred approach to this issue is that the Walter Caleros-types of persons living in America have no need to "{sneak} into the girls restroom," since by your reckoning they can do so under the color of law. Respectfully, no, it isn't. Walter and "trans women" would, in your approach, fall into the same category, namely, men who can enter into women's bathrooms under color of law. I have spent many pages talking about "limiting principles," and Walter is a good example of why such principles are needed. in my view, the only coherent and workable limiting principle is biological sex (with, perhaps, some narrowly-drawn exceptions for persons with DSDs). From a previous post: Your comment above ("It seems Smac's fear is that a pervert could play the I'm-really-a-woman-and-I-have-the-right-to-be-here card, but there have been zero examples of that happening. Anywhere. Ever.") appears to put you at Step 1 ("It's not really happening"). I think this is not correct. First, under your approach, there is no need to "play the I'm-really-a-woman-and-I-have-the-right-to-be-here card," since everyone would have access to women's bathrooms. You reject any and all "limiting principles," correct? Second, I think there have been instances of bad actors taking steps to appear as women so as to enter into women's bathrooms for unlawful purposes (and under your "No Limiting Principles" approach, there would be no way for a jurisdiction to keep them out of women's spaces). Judge Rules Loudoun County Teen Sexually Assaulted Female Student in Girls' Bathroom (2021) "{T}he male student forcibly sodomized his ninth-grade daughter in a school bathroom while wearing a skirt." And he was in the girls' bathroom under color of law (the "gender-inclusivity policy"). 6 Men Who Disguised Themselves as Women to Access Bathrooms (from 2016) "{W]earing fake breasts and a wig while loitering in a women’s restroom..." "Hernandez had disguised himself as a woman on two separate occasions to get inside a UC Berkeley locker room." "Both instances involved a man in women’s clothing who used a mirror and camera to take pictures of a mother and her 5-year-old daughter..." "a man used a women’s locker room at a public swimming pool in Washington state to undress in front of young girls who were changing for swim practice. When Seattle Parks and Recreation staff asked him to leave, the man claimed that 'the law has changed and I have a right to be here.'" Transgender woman arrested for voyeurism at Ammon Target (2016) "{A} man, dressed in women’s clothing, had entered a fitting room in the women’s clothing section of the store. Deputies say the suspect was seen taking photos of a woman in a stall next to him while she was changing." Man Dressed as Woman Arrested for Spying Into Mall Bathroom Stall, Police Say (2015) "A man dressed as a woman was arrested in Virginia on Monday after police say he was caught peeping into restroom stalls three times in the past year." Cross-Dressing Man Secretly Taped Women at Macy’s (2013) "{T}he man was wearing a wig and was dressed as a woman." Sex offender posed as woman, went into women's locker room "A registered sex offender dressed up like a woman, went into a women's locker room at a pool and talked with several children before being chased down." Man Undresses In Front Of Children In Walmart Restroom (2010) "Burnes was wearing a dark woman's suit, black high heals, red nail polish, green eye shadow and women's jewelry. ... a witness also watched Burnes 'show off his white girdle and dark thong underwear' in the women's section of the store." Purdue police investigate report of man taking photographs in women's restroom (2008) "{A} man dressed as a woman was seen taking photographs under the wall of a women's bathroom stall..." Sexual predator jailed after claiming to be ‘transgender’ to assault women in shelter (2014 in Canada) "Under the name 'Jessica,' he was able to get into the women’s shelters, where he sexually assaulted several women in 2012..." ‘Transgender’ man may continue using girls’ locker room, says college (2012) "The 45-year-old man, who calls himself Colleen Francis, presents himself as a transgender 'female.' ... On September 26, teenage girls on a high school swim team were using the facilities when they saw 'Colleen' Francis exposing male genitalia through the glass window in a sauna." "Joe Wheeler of the Thurston County Prosecutor’s Office said he will not prosecute the matter as indecent exposure." Seems like the above items moves us to Step 2 ("Yeah, it's happening, but it's not a big deal"). These items were not hard to find, BTW. I don't think this matters, as under your regime there are no limiting principles, ergo no such thing as a "legitimate" or "illegitimate" right for males to enter into women's bathrooms. All of them have that right, under color of law. No need to even bother with claiming to be trans or dressing like a woman or entering covertly. You've said this twice now. What is this "category" thing? Under your preferred "no limiting principles / laissez faire" approach, what "categories" of men exist, such that some can enter into women's bathrooms and some cannot? By repeatedly alluding to "categorical" differences, you implicitly acknowledge reliance on some sort of limiting principle. Could you explain what the principle is? So everyone can enter into women's bathrooms under color of law. That is what you propose? Thanks, -Smac

But not to bathrooms. Yes. It seems like it would not be too difficult to go in and get a replacement that provides the individual's biological sex. Government documents such as DLs are not, I think, supposed to be a mode of self-expression of the individual. Rather, it serves some specific and important purposes: Identification accuracy: Sex is a stable, observable biometric characteristic that helps law enforcement, border officials, and others confirm that the person presenting the DL is the person to whom it was issued. Public safety and investigation: Accurate sex data assists in locating missing persons, identifying suspects or victims, and conducting criminal investigations where physical description matters. Sex-specific legal and medical contexts: DLs are sometimes used in settings where sex is relevant—medical emergencies, single-sex facilities, correctional placement, and certain statutory requirements. Administrative consistency: DLs serve as foundational identity documents. Recording sex the same way across records (birth certificate, license, etc.) reduces mismatches and fraud opportunities. Statistical and planning uses: Aggregated, sex-based data from licensing records can support transportation planning, public-health analysis, and other government functions that rely on demographic accuracy. I suspect you care less about the foregoing utilitarian-minded functions of DLs, and would prefer to have DLs reflect the individual's subjective "gender identity" that differs from his/her biological sex and the sexual binary. Some jurisdictions are on board with this approach, and some are not. Thanks, -Smac

No rule stops every possible bad actor or every urgent biological need. That is not a serious standard for whether a boundary is justified. Sex-separated bathrooms have never been claimed to be perfect filters. They reduce opportunity, express a clear norm, and give women a default expectation of privacy from the opposite sex. Determined predators, people in medical distress, or someone who simply ignores the sign can still cause problems under any regime. The same is true of locks, age limits, and “Employees Only” doors. We do not abandon those measures because they are imperfect. The relevant comparison is not “sex-based rule vs. zero incidents," but is instead “sex-based rule vs. identity-based (or no) rule.” Under a sex-based rule, a male who enters is already in violation; staff, other users, and (where applicable) the law have a clear basis to challenge or remove him. Under an identity-based rule, a male who asserts a female identity has a claimed entitlement to be there. That changes the default and removes the clean limiting principle. Urgent need or poor impulse control does not require us to dissolve the category. They can be an argument for single-occupancy options where feasible, and for ordinary enforcement of existing criminal laws when someone abuses a space. It is not an argument that sex is irrelevant to the purpose of the facility. Thanks, -Smac

WNBA Strongly Denounces “Bad-Faith Efforts” of Cis Men Claiming to Be Trans to Join I think White and Freedom are making a legitimate point. If anyone can "register for the WNBA draft by simply saying they identify as women," and if "simply saying" is not to be questioned, then White and Freedom are on their way to the WNBA. Alternatively, the WNBA would resolve the matter by explaining who does, and does not, count as "women." But they can't and won't do that. If the league endorses and accepts the expansive, incoherent, "a woman is anyone who identifies as one" approach, then the point White and Freedom are making will be validated. Alternatively, if the league puts any coherent constraints on the definition of "woman," then they'll run afoul of folks who object to those constraints. To the extent White and Freedom are making a point about the definition of "woman," I don't see that as "bad faith." I see it as a deployment of Saul Alinsky's "Rule 4": "Make the enemy live up to its own book of rules." It's not just the policy. It's the recent public statements welcoming "trans" athletes into the WNBA. And he appears to be entirely correct. I am curious about this. Ironically, the WNBA would seemingly need to rely on the reality of biological sex to defeat legal claims. "{N}o legitimate trans athlete." If these principles are in play, then there is no mechanism whereby the WNBA can dispute a claimed "identity." I think they want this controversy to blow over. It may well do that. Thanks, -Smac

I think you are conflating two separate - but interrelated - issues. Government documents should correctly recite the person's biological sex, for a variety of reasons. But IDs are not really relevant to, for example, the Kansas law. Thanks, -Smac

Yes, the vast majority of the time, those who passed or were close enough to be ambiguous were the only ones attempting to use them…or we would have had this discussion long before it became a political rallying cry. I think stories like Lia Thomas and Lily Tino have given rise to these discussions. Again: The issue did not originate with politicians inventing a controversy. It arose when institutions and advocacy groups began treating self-identification as sufficient to redefine sex-based categories in sports, prisons, shelters, and intimate facilities, and when those changes produced concrete conflicts over fairness, privacy, and safety. That some politicians thereafter paid attention to it does not mean they created the topic, or that the underlying concerns are fabricated or "insane." Thanks, -Smac

So tell me what males want to use the women’s bathrooms who could pass for women, but aren’t transgendered women? It seems that you are A) assuming that only fully-transitioned "trans women" and bad actors "want to use the women's bathroom," and B) laws restricting males from accessing women's bathrooms are worthless. Am I correct on that? Okay. Not sure how this would play out at scale. Access is lawful based on the status of the individual: Males who are "fully transitioned" trans women can go in, but all other males cannot. Is that correct? Or would you prefer to statute or legal mechanism at all? Just leave the decision to the individual? So by "fully transitioned" you are referring to biological males who have had their penises removed? Would all other men be barred from women's locker rooms? Not really seeing it, but I'll look again. Thanks, -Smac

The same way that happened a decade or two ago and was functioning relatively well (in the sense of with transgendered individuals and worked like tissue paper in stopping actual predators who weren’t bothered by social pressures to avoid such areas). What "way" are you referencing here? Trans women going into women's bathrooms? Also, in your view are there any other legitimate concerns of women and girls - beyond physical safety - that might be relevant to allowing biological males into women's bathrooms? From a public policy perspective, I think you are describing an informal, appearance-and-social-pressure regime and treating it as if it were a stable rule. Am I correct? That regime only functioned while the background expectation remained that the spaces were separated by sex. Within that expectation, people made practical judgments about edge cases. Once subjective "self-identity" is formally elevated over sex, the background expectation itself changes: a male who asserts a female identity now has a claimed right of access, not merely a hope of avoiding challenge. That is the difference. Social awkwardness and the risk of being challenged can deter some opportunistic behavior when the formal rule is still sex-based. They are much weaker once the formal rule (or institutional policy) says "self-identity" controls. At that point the person who is challenged can invoke the policy or the law in his favor. You are also setting what looks to be an impossible standard. If a rule cannot stop every determined predator, it is supposedly worthless ("and worked like tissue paper in stopping actual predators")? Almost no boundary works that way. Locks, age restrictions, and sex-separated prisons do not eliminate all misconduct; they still exist, reduce opportunity and express a clear norm. The same is true here. The claim is not that a sex-based rule will catch every predator. It is that the rule keeps the category coherent and avoids creating a ready-made entitlement for any male willing to claim a female identity. If the alternative is “let appearance and informal judgment decide, and rely on ordinary criminal law after the fact,” then there is still no principled way to admit males who identify as women while reliably excluding other males. Appearance is a spectrum, identity is unverifiable, and predators are not limited to those who look stereotypically male. That is why I think the "limiting principle" question keeps returning. A sex-based rule has one. An identity- or appearance-based rule does not. Also, I wonder if some of this discussion has been hampered by our having differing perspectives and presuppositions. My participation here is based mostly on "public policy"-related issues, whereas you and @Analytics are evaluating the Kansas law and other legalities from the perspective of one or few individuals. Both inquiries are legitimate, but I hope that, having now pointed out the "public policy" angle, you can weigh in on it. I value and appreciate your perspective. Thank you for sharing it. -Smac