SCOTUS Decision: Ban on "Talk" Conversion Therapy is Unconstitutional

[Calm]

3 hours ago, smac97 said:

Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men.

What about transgender men/biological women?  Di you think they may have difficulties using women’s restrooms, they might be harassed, recorded, threatened as well? (Maybe not hands on physically threatened in that moment though might be given some behaviour by offended women I have seen, but put at risk by being recorded, doxxed, etc)?

Edited 4 hours ago by Calm

[webbles]

1 hour ago, Analytics said:

Sexual assault, voyeurism, spying, exhibitionism, etc., are all awful and are prosecuted aggressively, as they should be.

I think it would be pretty easy to determine sexual assault, but the others you mentioned (voyeurism, spying, exhibitionism).  How would we prosecute them?  I've been in locker rooms where if the same behavior was done outside of a locker room, it would be considered exhibitionism.  Or how do we say that someone is spying.  Say a person in a locker says that another is spying, then what?  We don't have cameras in locker rooms.  And if the person being accused is a trans person, wouldn't they see it as an attack on them and rightfully defend themselves?  That's where I come from.  Sex segregated places made it a bit easier to determine if someone was being nefarious.  A person could accuse another person and if the accused happened to be the wrong gender, then it was a simple case.  But that's no longer the situation.  Now, it seems like we have to have actual assault before any prosecution can happen.

[smac97]

53 minutes ago, Calm said:

Quote

Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men.

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

 

Edited 3 hours ago by smac97

[smac97]

3 hours ago, Analytics said:

On these legal issues, I'll give some background on Kansas.

"Background" about abortion?  How does that relate to sex-segregated bathrooms?

3 hours ago, Analytics said:

Under the Kansas state Constitution, women here still have a Constitutional right to abortions.

Yes.

3 hours ago, Analytics said:

The religious right has been fighting this furiously. The Kansas legislature had basically outlawed second-term abortions, and this was successfully challenged in court and ruled unconstitutional under the state Constitution. In Hodes & Nauser v. Schmidt (2019) the Kansas Supreme Court ruled 6–1 that this language protects a fundamental right of personal autonomy including bodily integrity, self-determination, and decisions concerning one's body, health and family life. The court concluded that deciding whether to continue a pregnancy falls within that protected sphere. This was reaffirmed in 2024. 

We should expect to see varying constitutional analyses in the state appellate courts.

3 hours ago, Analytics said:

The religious right continues to fight against this by trying to change the Constitution and most recently by changing how supreme court judges are selected, but they continue to fail.

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?

3 hours ago, Analytics said:

Given how the citizens of Kansas enjoy an outsized fundamental right to personal autonomy, bodily integrity, self-determination, decisions about your own body, health, and family life, I'm guessing this will be a strict scrutiny case in Kansas,

"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:

Quote

Laws and rules and regulations that distinguish between the sexes are subject to intermediate constitutional scrutiny. Intermediate constitutional scrutiny forbids unfair discrimination against similarly situated male and female individuals but allows the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives. Notwithstanding any provision of state law to the contrary, distinctions between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms and other areas where biology, safety or privacy are implicated that result in separate accommodations are substantially related to the important governmental objectives of protecting the health, safety and privacy of individuals in such circumstances.

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:

Quote

Under intermediate scrutiny the Kansas law has a realistic path to survival, though it is not guaranteed.

Intermediate scrutiny requires the State to show that sex-based distinctions are substantially related to an important governmental objective.

Arguments that favor the law

• Privacy, safety, and bodily security in spaces involving undress or vulnerability (restrooms, locker rooms, etc.) are routinely treated as important governmental objectives.
• Separating those facilities by biological sex is a long-standing, direct means of advancing those interests. Courts have repeatedly accepted this fit in analogous settings.
• K.S.A. 77-207 itself declares that such distinctions meet the standard; while not binding on the courts, it supplies legislative findings the State will rely on.
• The law tracks biological sex rather than creating a novel or arbitrary classification.

Arguments that cut against it

• Challengers will contend the fit is insufficiently tight—that the law sweeps too broadly, ignores transgender individuals’ interests, or is pretextual.
• They may also argue that intermediate scrutiny is too lenient and that the Kansas Constitution’s autonomy/privacy protections demand stricter review (the Hodes framework).
• Evidence of legislative process or animus, if credited, could undermine the “important objective” or “substantial relation” showing.

Bottom line: If the court applies genuine intermediate scrutiny and accepts privacy/safety in sex-separated intimate facilities as important objectives, the law is more likely than not to be upheld. The principal risk is that the Kansas courts elevate the standard (via Hodes-style autonomy or equal-protection reasoning) or find the means-end fit lacking on the specific facts developed in litigation.

We'll see.

3 hours ago, Analytics said:

and that the big-government Christians will lose again.

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":

Quote

What is required for a temporary restraining order?

Listed below are the requirements for a TRO:

• To demonstrate a successful likelihood of proving the ACLU's claims, which included procedural due process and right to personal autonomy; right to equality under the law; right to informational privacy; right to free expression; and violation of single subject and clear title.

• To prove that there will be immediate irreperable harm.

• To show that the threatened injury of the transgender plaintiffs are greater than the harm that could happen to the defendants.

• To show the the TRO would serve the public's interest.

• To show no other adequate solution other than a TRO.

Why Douglas County District Judge James McCabria ruled against a TRO?

The biggest ruling made by McCabria is that the plaintiffs' team failed to fill the burden of proof under the TRO requirements.

Another point made in his ruling is that multiple sets of claims by Kobach and the ACLU are unsubstantiated with specific incidents or facts.

"But the Court cannot fairly analyze important concepts like injury to personal autonomy, informational privacy or equality under the law (or even determine whether they apply) without examining well-developed factual scenarios that have been subjected to challenge and debate," McCabria wrote in his ruling. "Courts should not exercise the tremendous power of an injunction on speculation."

More here:

Quote

The judge, an appointee of former Republican Gov. Sam Brownback, asserted that acting hastily to invalidate a state law “risks the appearance of either political bias or lack of appreciation for the value and importance of the full, fair deliberative process in such circumstances.”

He found that ACLU staff attorney Harper Seldin fell short on the first two elements necessary to justify a temporary restraining order — demonstrating a likelihood of the plaintiff’s success based on the merits of the claim and showing that there would be immediate, irreparable harm if the court did not intervene.

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.

3 hours ago, Analytics said:

We'll see if their luck finally changes.

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

Edited 1 hour ago by smac97

[Calm]

2 hours ago, smac97 said:

think I have addressed this at substantial length.

It was just strange to me you referenced solely the men who would feel awkward and not the women.  I was trying to figure out what you were talking about….I assumed you yourself were referring to trans women, the edge cases in your view who do not visually look like they should be in a woman’s bathroom and was wondering if you saw something different between the cases.   I didn’t mean you to repeat everything, didn’t mean to make you work, could have just said something along the lines of left out the biological women, but they are included, of course, in the same line of reasoning. 

Edited 1 hour ago by Calm

[smac97]

5 minutes ago, Calm said:

It was just strange to me you referenced solely the men who would feel awkward and not the women.  

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.

5 minutes ago, Calm said:

I was trying to figure out what you were talking about….I assumed you yourself were referring to trans women, the edge cases in your view who do not visually look like they should be in a woman’s bathroom and was wondering if you saw something different between the cases.   I didn’t mean you to repeat everything, didn’t mean to make you work, could have just said something along the lines of left out the biological women, but they are included, of course, in the same line of reasoning. 

Okay.  Glad we cleared that up.

Thanks,

-Smac

[Calm]

2 minutes ago, smac97 said:

We're at a pretty pass when I have to ask you to clarify what you mean by "men" and "women."

 

Given you and others don’t view trans women as women or trans men as men, if I leave off trans or biological, I mean biological.  I try to speak the language of those I am speaking with using words as they do unless I specify I don’t.  

[Calm]

18 minutes ago, smac97 said:

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.

I completely agree.  I don’t myself.  That’s why I see an issue with the edge cases where someone can visually pass as the other sex.  I would prefer to have a passing trans woman use the restroom I am in rather than a passing trans man.  If that ever happens to me, I will be mildly freaked.  
 

Added:  that freak will include significant vicarious anxiety and discomfort I assume the other will be feeling as most likely they really, really don’t want to be there.

Edited 41 minutes ago by Calm

[smac97]

3 minutes ago, Calm said:

I completely agree.  I don’t myself.  That’s why I see an issue with the edge cases where someone can visually pass as the other sex.  

Okay.

3 minutes ago, Calm said:

I would prefer to have a passing trans woman use the restroom I am in rather than a passing trans man.  

Okay.  Seems like the negation of sex-segregated spaces, since what counts as "passing" and what does not is almost certainly unworkable.

3 minutes ago, Calm said:

If that ever happens to me, I will be mildly freaked.  

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

[Calm]

6 minutes ago, smac97 said:

Seems like the negation of sex-segregated spaces, since what counts as "passing" and what does not is almost certainly unworkable.

Just like is and isn’t porn.

[Calm]

8 minutes ago, smac97 said:

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

I don’t care as long as they behave themselves.  How would I even know to care if they pass as a woman?

Edited 39 minutes ago by Calm