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

[webbles]

21 hours ago, Analytics said:

Women and girls have a right to be left alone. A woman shouldn't have to establish her sex to strangers simply because they think she looks masculine. Suppose someone reports her, she produces identification, and the encounter ends with an apology. She has nevertheless been scrutinized and made to justify her presence while simply using the restroom. What prevents that from happening again and again and again?

But wasn't that scrutiny always happening?  If someone before 2013 walked into a bathroom and didn't look correct for that bathroom, didn't people scrutinize them?  I've accidentally walked into women's bathrooms and I was definitely scrutinized and even mocked by the girls in there.  If you look too feminine in a male bathroom or too masculine in a female bathroom, people will react to it.  I've heard of people going to the employees and telling them that someone of the wrong gender is in a bathroom.  So, I think people have always had to establish their sex.  That was the norm of society.

[Analytics]

1 hour ago, webbles said:

But wasn't that scrutiny always happening?  If someone before 2013 walked into a bathroom and didn't look correct for that bathroom, didn't people scrutinize them?  I've accidentally walked into women's bathrooms and I was definitely scrutinized and even mocked by the girls in there.  If you look too feminine in a male bathroom or too masculine in a female bathroom, people will react to it.  I've heard of people going to the employees and telling them that someone of the wrong gender is in a bathroom.  So, I think people have always had to establish their sex.  That was the norm of society.

I'm not so sure, and that type of behavior isn’t exactly what I was talking about. Here is all of my personal experience.

Once, my wife was having a birthday party at a busy bar/restaurant. This was about 15 years ago. One of our guests grabbed my arm and said, “Analytics! You’ve got to see this!” She then proceeded to try and drag me into the women’s restroom. I refused to go, but she absolutely insisted and refused to give up. Finally so as to not make a scene, I reluctantly followed her in. Everybody stopped what they were doing and look at me. My host said, “It’s all right everyone! He’s with me!” With that, everybody exhaled and ignored me. She showed me there was a whiteboard in the restroom, and somebody had drawn an extravagant birthday message for my wife. I spent a tenth of a second admiring it, and got the heck out.

Perhaps 5 years ago, I was at a crowded downtown venue, and there was a very long line for the women’s room, and a very short line for the men’s. A woman who was an unambiguously cisgender woman got into the short line for the men’s room. She waited her turn, used the toilet, washed her hands, and got out. Everybody there felt quite uncomfortable, but everyone very deliberately ignored her.

About a year after that, I was in exactly the same situation, but this time a woman asked me for permission to use the men’s room, because she had to go very badly and couldn’t wait in the women’s line. I gave her permission to use the toilet. She went in, took care of business, and got out. Again, everyone ignored her.

Likewise, when Lily Contino used the women’s restroom in Disneyworld, everyone politely ignored her and nobody made a stink about it until her videos went viral, and even then, the main objection was her videoing other people in the restroom and not her presence there.

Compare that to the videos Smac collects that show people whipping out there cellphones and recording themselves saying, “I just saw a tranny go into the women’s restroom, and I’m going to confront them on video when they come out!” One person in his collection actually flew across the Atlantic Ocean in order to generate this type of content, and when she got impatient waiting for the person she was stalking to use the restroom, decided to confront her in a hallway with the accusatory question, “You’re a man! What bathroom to you use???!!!!”  That isn’t healthy.

[smac97]

3 hours ago, Analytics said:

Quote

Again: I am asking you to say, in a sentence that could go in a policy, which males are out.  This is what you are steadfastly refusing to do. 

Again: The question remains which rule does that, and who counts as the women and girls in the tally. That is the argument, and you are evading important elements of it.

Again: “Don’t pass a law unless there is a need, and don’t let it do more harm than good” is not a criterion for who the class is. It is a reason to regulate less. Applied to a women’s prison or a girls’ locker room, it can just as easily mean “don’t pass a sex law” as “don’t pass an identity entitlement.” You still have to say which males are out.

Again: The natural and foreseeable effect of your proposal is the elimination, either de facto or de jure or both, of sex-segregated spaces.  

I am not asking about analysis of whether biological women and girls will be harmed by your policy.  I am, instead, asking you to explain your policy in the first instance.

• Under your policy, who is the "class" of persons that can access women's bathrooms?
• Under your policy, which males are to be excluded from women's bathrooms?  
• Under your policy, who counts as "women" and "girls" for the purposes of gaining access to women's bathrooms?  Is it "anyone who identifies as a 'woman' or a 'girl?'"
• Do you dispute that the natural and foreseeable effect of your proposal is the elimination, either de facto or de jure or both, of sex-segregated spaces?

Smac, I favor people ordinarily using the restroom corresponding to their gender identity and making that decision themselves. That includes transgender women who are biologically male, without requiring them to prove their sincerity or look sufficiently feminine.

We are making some progress.  I am glad of that.

I asked: "Under your policy, who is the 'class' of persons that can access women's bathrooms?"  You sort of answer that above: "People ordinarily using the restroom corresponding to their gender identity and making that decision themselves."

You also sort of answer this one: "Under your policy, who counts as 'women' and 'girls' for the purposes of gaining access to women's bathrooms?  Is it "anyone who identifies as a 'woman' or a 'girl?'"  Your kinda/sort answer: "That includes transgender women who are biologically male."

Okay, but does your proposal exclude any males?  It seems like it does not, as all anyone has to do to gain entry is think "I 'identify' as a woman."  Do you acknowledge this?

Under your policy, which males are to be excluded from women's bathrooms?  

Do you dispute that the natural and foreseeable effect of your proposal is the elimination, either de facto or de jure or both, of sex-segregated spaces?

3 hours ago, Analytics said:

I understand that my approach doesn’t preserve an exclusively female admission rule.

So when I ask "Do you dispute that the natural and foreseeable effect of your proposal is the elimination, either de facto or de jure or both, of sex-segregated spaces?", and when you obliquely respond with "my approach doesn’t preserve an exclusively female admission rule," can I take your answer as, effectively, "Yes, I acknowledge that my proposal amounts to the elimination, either de facto or de jure or both, of sex-segregated spaces."?

3 hours ago, Analytics said:

You say your rule can be enforced through rare, fact-specific complaints. Suppose a patron reports that someone washing her hands looks male. What additional evidence, if any, would justify intervention, and how would staff establish that person’s sex?

I agree that people should be able to use a restroom without being inspected, photographed, or shamed for how they look. I also agree that circulating videos of confrontations can train people to treat every ambiguous stranger as a suspect. That isn’t the culture I want. Women and girls should be left alone. So should people who are just trying to wash their hands.

Where we differ is what the room is for.

I think sex-separated restrooms exist because the two sexes have different bodies, different patterns of sexual offending, and a long-settled expectation of privacy and propriety and decorum regarding spaces where women are in a state of partial undress or otherwise in need of a space providing privacy, propriety and decorum.

Gender identity does not change those facts. A policy of “whoever decides they belong here belongs here” is not a modest extension of grace. It is a profound and fundamental change in the admission rule from sex to self-description.

You are right that my rule does not preserve an appearance-exclusive women’s room. It isn’t trying to. It preserves a sex-exclusive one. That means some females who have beards, flat chests, and masculine clothing would use the women’s room, just as some butch women already do. Encountering someone who “looks male” would not, by itself, prove the rule was broken. I accept that cost. The alternative cost is that any male who claims a female identity — or who is willing to say he does (or even sillently think to himself that he does) — has a standing invitation to go into women's bathrooms. You note that someone could abuse discretion. Under self-ID, abuse is not a loophole. It is the rule operating as written.

I don’t think the possibility of abuse “doesn’t establish” anything. It is the reason we have locks, stalls, and sex designations in the first place. We already reject “most people will behave” as a sufficient reason to make locker rooms, showers, shelters, and prisons mixed-sex. Bathrooms are the same kind of space, only more common.

Regarding enforcement: I do not want staff or patrons running a femininity test at the sink. A report that “someone washing her hands looks male” is not enough. I would treat it the way we already treat other low-information complaints. Staff can look for conduct: lingering without using a fixture, filming, peering under or over stalls, following a particular person, exposing genitals, or refusing to leave a stall when asked in a way that suggests they are not there to use the toilet. Sex is established the same way it is established everywhere else we still care about it—birth records, medical history, or, in the rare contested case, the same kinds of facts courts already use. Day to day, almost none of that happens. Most people self-sort. The point of a sex rule is not constant policing. It is that when there is a problem, the institution is allowed to say “this space is for females” without first litigating someone’s identity.

I also think we should build more single-occupancy rooms. That is the cleanest way to give masculine-looking females, dysphoric males, and anyone who just wants a door that locks a place to go without converting the multi-stall women’s room into a mixed-sex space.

You favor ordinary grace plus intervention after harassment. I favor ordinary grace inside a sex-based boundary, plus intervention after harassment. The disagreement is whether the boundary itself is worth keeping. I think it is, including for girls who cannot be expected to sort “sincere transgender woman” from “male who wants access,” and including for women whose discomfort is not a character flaw. Leaving people quietly alone is easier when the room still means what the sign says.

Thanks,

-Smac

Edited 23 hours ago by smac97

[webbles]

2 hours ago, Analytics said:

I'm not so sure, and that type of behavior isn’t exactly what I was talking about. Here is all of my personal experience.

Once, my wife was having a birthday party at a busy bar/restaurant. This was about 15 years ago. One of our guests grabbed my arm and said, “Analytics! You’ve got to see this!” She then proceeded to try and drag me into the women’s restroom. I refused to go, but she absolutely insisted and refused to give up. Finally so as to not make a scene, I reluctantly followed her in. Everybody stopped what they were doing and look at me. My host said, “It’s all right everyone! He’s with me!” With that, everybody exhaled and ignored me. She showed me there was a whiteboard in the restroom, and somebody had drawn an extravagant birthday message for my wife. I spent a tenth of a second admiring it, and got the heck out.

Perhaps 5 years ago, I was at a crowded downtown venue, and there was a very long line for the women’s room, and a very short line for the men’s. A woman who was an unambiguously cisgender woman got into the short line for the men’s room. She waited her turn, used the toilet, washed her hands, and got out. Everybody there felt quite uncomfortable, but everyone very deliberately ignored her.

About a year after that, I was in exactly the same situation, but this time a woman asked me for permission to use the men’s room, because she had to go very badly and couldn’t wait in the women’s line. I gave her permission to use the toilet. She went in, took care of business, and got out. Again, everyone ignored her.

Likewise, when Lily Contino used the women’s restroom in Disneyworld, everyone politely ignored her and nobody made a stink about it until her videos went viral, and even then, the main objection was her videoing other people in the restroom and not her presence there.

Compare that to the videos Smac collects that show people whipping out there cellphones and recording themselves saying, “I just saw a tranny go into the women’s restroom, and I’m going to confront them on video when they come out!” One person in his collection actually flew across the Atlantic Ocean in order to generate this type of content, and when she got impatient waiting for the person she was stalking to use the restroom, decided to confront her in a hallway with the accusatory question, “You’re a man! What bathroom to you use???!!!!”  That isn’t healthy.

The behavior from your personal experience seems to match what I'm talking about.

The first one, the women definitely scrutinized you.  And probably would have asked you to leave or at least been very worried about you.  But then a woman announced that you were with her and they felt better because there was someone escourting you.

The second one, the men scrutinized the woman but accepted the situation because of the long line.  If there hadn't been a long line, there might have been some more interaction.

The third one, the woman knew she was crossing the rules and so asked for permission.  Similar to the first one, because she had permission, no further interaction.

So, scrutiny is happening.  And, if the situation warrants it, they might not do anything further.  But they might escalate it.  We've had lawsuits that go all the way to state supreme courts on whether people can go in bathrooms and this is before 2013 and before any bathroom laws (in either direction) were implemented.  There was a cultural rule that you went to the bathroom you were supposed to go to.  If you didn't, you would be scrutinized, told to leave, harassed, or even arrested.  It is why transgender fought for the right to go into the bathroom of their choice.  Previously, they didn't have that and could be denied a bathroom.

[smac97]

9 hours ago, webbles said:

But wasn't that scrutiny always happening?  If someone before 2013 walked into a bathroom and didn't look correct for that bathroom, didn't people scrutinize them?  I've accidentally walked into women's bathrooms and I was definitely scrutinized and even mocked by the girls in there.  If you look too feminine in a male bathroom or too masculine in a female bathroom, people will react to it.  I've heard of people going to the employees and telling them that someone of the wrong gender is in a bathroom.  So, I think people have always had to establish their sex.  That was the norm of society.

And it would happen regardless of whether "sex" or "gender identity" is the ticket for entry into women's bathrooms.

The difference, though, is that Roger's proposal, if enacted, would eliminate, either on a de facto or de jure basis, sex-segregated spaces.  Women and girls would then have no basis, legal or otherwise, to "scrutinize" anyone.  They would, instead, be compelled to put up with men in women's bathrooms.  No legal recourse whatsoever.  And I would also anticipate that the number of instances of men going into women's bathrooms would increase by a lot.  

And it gets worse.  Much worse.

I worked with Grok in terms of formulating plausible legal issues arising from the “whoever decides they belong here belongs here” approach.  The results were grim, for society in general but particularly for those poor souls at the very bottom of the pecking order created in Roger's proposal: women and girls.

(I've tweaked Grok's response a bit here and there) :

Quote

A “whoever decides they belong here belongs here” rule does not merely add a few extra users to an intact women’s room. It changes what the sign means. Once admission is self-description rather than sex, the space is no longer sex-segregated, either de jure (the written rule) or de facto (nobody will tell a male to leave). Title IX regs, workplace privacy norms, voyeurism statutes, and “reasonable expectation of privacy” analysis all grew up around female-only occupancy. Self-ID does not repeal those texts. It makes them internally inconsistent.

Bostock held that firing someone for being transgender is sex discrimination under Title VII. It expressly reserved bathrooms, locker rooms, and dress codes. Lower courts and agencies then split. Some extended Bostock to facility access. Others, and the current EEOC in the federal-sector setting, have held that Title VII still permits single-sex intimate spaces.

Employers do not wait for the Supreme Court. They write the policy they think survives the next complaint and reduces the risks of litigation.  And in doing so, those policies could become fairly draconian against women and girls. 

Some examples:

Workplace. Female employee finds a male coworker in the marked women’s room and asks him to leave. Under self-ID that request can be recast as sex discrimination against a transgender employee, gender-identity harassment under state or local law, or a hostile environment if the request is repeated or accompanied by “misgendering.” HR’s incentive is obvious. The identity charge is easy to plead. The woman’s charge requires a court to say “woman” still means adult human female. The risk-averse move is to treat the woman's request as the problem.  Women and girls lose.

A policy that “questioning another employee’s identity or facility use is harassment” converts a privacy objection into a code-of-conduct violation: write-up, training, gag order, or termination. She then has her own Title VII or state claims—sex discrimination (female-only privacy withdrawn from females), retaliation, hostile environment, constructive discharge. Ames (2025) removed the extra burden some circuits had imposed on majority-group Title VII plaintiffs. Both sides can sue, so the employer polices the cheaper side: the woman, ex ante.  Women and girls lose.

The corporation’s rational response is prior restraint. Forbid speculation about a coworker’s sex. Frame discomfort as bias and, if expressed, harassment. Handle a complaint about a male in the women’s room as a complaint against the complainant (mostly women) unless there is independent evidence of voyeurism or assault. Offer the objecting woman a single-occupancy room “as an accommodation,” which concedes the multi-stall room is no longer female (and imagine the lines that women will form for that single-occupancy room once it becomes the only place they can use the bathroom without men around, so women and girls lose here as well). In union and public-sector shops add grievances both ways, Pickering speech issues, and religious-accommodation / RFRA claims if employees are ordered to affirm the identity or stay silent.

Public accommodations. Replace HR with a store manager, gym, or park district. Still a lose-lose proposition for the entity managing the bathrooms.  Staff face an identity-based public-accommodations claim if they remove the male, and a sex-discrimination or deceptive-practices claim from women if the facility advertised a women’s room and then ran it mixed. In identity-first states the business may be forbidden to ask him to leave; the woman’s request becomes the event the business must punish. Women and girls must not only accept men in their bathrooms, they must also remain utterly silent about it.  Women and girls lose.

Schools. Same two-way Title IX / equal-protection fight, plus parents, records, and concealment of social transition. The sports cases treat Title IX “sex” as biological sex; that supports sex-separated facilities but is not a bathroom holding. Administrators typically silence girls and parents first.  Girls and women lose a lot here.

Criminal and privacy law. Voyeurism, exposure, and trespass still exist. Self-ID changes when staff will invoke them. A male washing his hands and leaving has committed no crime and, under the policy, no actionable violation (and many non-physical violations, such as the man leering/looking at the women in the bathroom, would likely be quite difficult to prosecute). In contrast, the woman or girl who objects has committed a violation. Staff, trained that “looking male is not evidence,” wait for a second fact. If the owner has announced that males who identify as women may be present, a later privacy or negligent-security claim is easier to defend: she was on notice the space was mixed.  Women can submit to men in what-were-previously-women's spaces or take their bathroom business to a single-occupancy bathroom (if there is one available) or to other facilities, though these other places would likely also allow men in women's spaces, thus affording no real solution to women and girls.

Why volume and silencing arrive together

Actor	If self-ID is the rule	If sex is the rule
Male identifying as woman, excluded or asked to leave	Title VII / state GI / public-accommodations claim	Usually loses on facilities if sex is biological; may still have a status claim if fired for being trans
Female who objects	Disciplined; sex-discrimination, retaliation, hostile environment	Request is consistent with policy
Employer / school / city	Sued either way; buys peace by gagging the female objection	Sued by identity plaintiffs

 

 

Insurers and boards demand identity-access policies.

Single-occupancy rooms, and all the costs associated with them, to be borne by private property owners and taxpayers, proliferate.

Women with religious or trauma-based objections are removed from the common facility.

Male employees learn that claiming the identity is a complete defense to being asked to leave.

Self-ID is not federal bathroom law nationwide. A woman asking a stranger to leave a public restroom is not, by itself, a Title VII violation. It becomes an employment or public-accommodations problem when they share an employer or a statute treats the request as denial of service. Pure self-ID, with no misconduct trigger and no sex-based default, is what collapses the category.

Women and girls are losing all over the place.  Bigly.

Prisons and jails. Same structure, no exit, higher violence. Identity placement puts males into women’s housing and showers. Female prisoners have Eighth Amendment, equal-protection, and PREA theories. Identity claimants have Eighth Amendment theories the other way if housed with men. Courts are already issuing conflicting injunctions. Strip searches cannot follow both rules at once.  In the end, there will be men being housed with women in prisons, and the latter group has no say in the matter.  Women lose.

Shelters and HUD housing. A women’s refuge exists because the threat is typically male. Identity as a funding or human-rights condition means staff cannot treat an individual being as disqualifying. Women who object are “creating an unsafe environment.” HUD’s 2016 Equal Access Rule pushed identity placement in shared sleeping and bathing space; federal enforcement of that rule has been halted, but many state and city laws still require it. Operators go mixed-sex and stop calling the building a women’s shelter.  Women and girls lose.

Medicine and records. Charting a male as “female” to match identity creates wrong-sex defaults in labs, dosing, and rooming. A nurse who uses accurate sex language can be disciplined or fired; a female patient who objects can be labeled uncooperative. Informed-consent and battery theories arise if a woman is examined on the premise that no male is present. Death certificates and crime statistics that follow identity rather than sex degrade the records later used in litigation. Licensing boards can treat accurate sex language as unprofessional conduct — yet another career-ending track.

Religious organizations. Sex-based rooms trigger public-accommodations suits and RFRA / ministerial-exception defenses. Cities that condition permits or grants on identity access turn a bathroom rule into an unconstitutional-conditions fight.

Family law and parents. School restroom access is often the first official act of a social transition. Parents who object get fitness fights. Custody evaluators treat a sex-realist view as evidence against the parent.

Evidence and defamation. “That is a man in the women’s room,” said to HR or posted, is pleaded as harassment or defamation in identity-first jurisdictions even when biologically true. Video of the encounter is both proof and a separate tort. Discovery swallows Slack and badge data. Criminal defendants will test identity as a housing or classification argument.

Insurance and premises liability. A sexual-assault claim in a “women’s” locker room becomes a notice-and-security case: did the occupier create the risk by policy? The occupier’s defense is civil-rights compliance. That defense can fail against the woman and succeed against the identity claimant in the same building. EPLI and D&O costs rise because both theories are covered claims.

Gyms, pools, membership spaces. Self-ID collapses “women’s hours” and “female changing” into marketing. Female members cancel and sue for deceptive trade practices. Denied males sue under public-accommodations law.

Grants and audits. Title IX, VAWA, PREA, and Clery all count sex. Recoding males as female falsifies the audit trail. Recipients then face grant-compliance or False Claims exposure for certifying sex-separated facilities they no longer operate—or civil-rights exposure for operating them. Compliance officers delete sex from the form. The category disappears on paper after it has already disappeared in the room.

The pattern in every setting: 

• (1) The identity claimant sues for exclusion or “misgendering.”
• (2) The female occupant sues for loss of a sex-separated space, assault, or retaliation.
• (3) The employee who described sex accurately sues for compelled speech, religion, or sex discrimination.
• (4) The institution’s cheap move is to gag (3) and hope (1) and (2) settle.

Once admission is a mental state, the only administrable enforcement tool left is speech control. You cannot verify identity without investigating sex. You cannot investigate sex without the scrutiny self-ID forbids. So institutions forbid the question. The room stays marked “Women.” The operative rule becomes: do not say that the man does not belong.

Legally speaking, none of these consequences are obscure or opaque or farfetched.  They are, instead, readily foreseeable.  I have to think that this is readily apparent to attorneys representing trans advocacy interests.  

And while Roger is not an attorney, he is a very smart guy.  And his ongoing failure/refusal to articulate any limiting principles to his proposal suggests, to me, that he is likewise aware of at least some of these likely ramifications.

Consequently, I see this is an intentional and deliberate and large scale motte-and-bailey strategy.  These outcomes are not surprises that advocacy groups and their lawyers just stumbled into. They are the ordinary consequences of the rule they ask courts and employers to adopt. People who litigate and draft statutes for a living are charged with seeing those consequences. When they refuse to address them except as “fearmongering,” that is not ignorance. It is a choice.

Foreseeability is the job.

A competent civil-rights lawyer, asked to replace "sex" with "self-described identity" as the admission rule for toilets, locker rooms, shelters, wards, and prisons, can forecast the ramifications in an afternoon:

• The women’s room ceases to be female-only.
• A coworker who objects becomes the disciplinary problem.
• HR gags speech because speech is the only remaining enforcement tool.
• Female prisoners and shelter residents face male bodies in spaces built around male-pattern risk.
• Medical charts and crime statistics break.
• Two plaintiff classes form and the institution silences the cheaper one.

None of that requires a novel theory of harm. It is how categories work. If the criterion is no longer sex, sex-separated institutions do not survive as sex-separated institutions. Counsel who file class complaints demanding identity access to “common restrooms” and rejecting single-user alternatives as insufficient are not asking for courtesy at the sink. They are asking that the sex classification itself be treated as unlawful.

They also know the appearance problem they use as a shield. They say a sex rule would send bearded females into the women’s room and invite scrutiny of butch women. That is an argument they deploy (as Roger has in this thread). This, in my view, proves they have mapped enforcement, mismatch, and social cost. They simply assign those costs to the sex rule and the (former) principal beneficiaries of them (women and girls), and assign none to self-ID—except “someone could abuse discretion,” which they then dismiss. Abuse without a screen is not an unforeseen loophole. It is the rule they wrote.

Silence is evidence of awareness, not the opposite.

If the cascade were genuinely unexpected, the briefs would contain limiting principles (principles which Roger has, again and again and again, failed/refused to articulate) : sincerity findings, surgical or legal-sex conditions, misconduct triggers, preservation of female-only prisons and refuges, no discipline for stating sex, single-occupancy as a complete remedy.

The standard ask is the opposite. No proof. No appearance test. No “reasonable belief” defense for the woman who objects.

Single-user rooms become rejected as "segregation" and discriminatory (yeesh, women and girls simply cannot catch a break under Roger's proposal). Sex-based placement in prison and shelter is treated as discrimination. Accurate sex language is treated as harassment. Compelled speech.  Punished speech. Legions of new grounds for lawsuits.  

This package is what we get when the loss of the female-only boundary is acceptable—or intended—and the remaining problem is people who keep naming sex.

Calling documented mechanisms “narratives” or “fearmongering” will be the tell (oh, and "Bigot!", as Roger has done in this thread). You do not need to disprove a consequence you have not foreseen. You need to disprove it when you have foreseen it and still want the rule.

Motte and bailey.

The motte is the modest claim offered to a general audience and advanced by Roger in this thread: Everyone has to pee; do not inspect strangers; intervene only for voyeurism or assault; sharing a video of a confrontation encourages vigilantism; grace is better than policing. That motte is psychologically cheap and partly true. No serious person wants bathroom sting operations.

The bailey is the legal demand that will actually be filed and lobbied: Gender identity is sex for purposes of Title VII, Title IX, public accommodations, housing, and prisons; exclusion from the opposite-sex facility is sex discrimination; an employer may not cabin a trans-identifying employee in a single-user room; a women’s shelter or prison that houses by sex is engaged in a civil-rights violation; objecting speech is harassment. On the bailey, a female-only room is not a legitimate aim that must be balanced. It is the injury.

The move is familiar. Defend the bailey with the motte, as I suspect Roger will do when the time comes.

And when asked what happens to women who do not want males in the room, advocates such as Roger will retreat "grace," dignity, rarity of crime, the ugliness of confrontation, and so on.

When writing the ordinance or the complaint, return to the bailey and treat any sex-based line as illegal.

The two positions being debated here (my sex-based proposal and Roger's "anyone who wants to go in" proposal) are qualitatively difference.  The latter is not the same policy as the former, but described kindly. One preserves a sex classification and asks for decency in administering it. The other abolishes the classification, a point I have noted repeatedly, and which point Roger has really not addressed.  And this other proposal needs the motte so the abolition does not have to be said out loud.

Feature, not bug.

If “trans women are women” is a definitional claim rather than a courtesy, then a space that excludes males by definition excludes some people the movement defines as women. The sex-separated room is then not a hardship to be mitigated with a third space. It is a standing insult to the definition. That is why third spaces are so often rejected, why “passing” is disclaimed as a requirement, and why the same theory is applied without a break from the office toilet to the refuge to the prison. A bug would be patched with limits. A feature is rolled out across every institution that still uses sex.

All of this is intentional and foreseeable.

Indifference to the female costs follows from the same definition. If the person in the room is already classified as a woman, the woman who objects is not protecting a sex class. She is attacking a member of that class. Her foreseeably being disciplined, silenced, or told to use the side room is, on that view, correct enforcement. Advocacy organizations and their lawyers are not failing to see that. They are treating it as the system working.

All of this is also intentional and foreseeable.  The costs to women and girls just don't matter.

We can grant every good-faith motive at the individual level (gender dysphoria is real; public humiliation is cruel; most people just want to use the toilet, etc.) and still hold the institutional actors to the rule they are actually seeking. They are sophisticated enough to know that self-ID does not leave sex-segregated spaces standing and then quietly used. That is why they fight the standing, not the etiquette.  That is why the motte-and-bailey stuff is so widespread.  That is why these outcomes are intended as features, not bugs, of proposals such as Roger's.  That is why these outcomes are being ignored or diminished, and why those expressing concerns about those outcomes are slandered as "Bigots!" (as Roger has done in this thread).

Thanks,

-Smac

Edited 16 hours ago by smac97

[Analytics]

19 hours ago, smac97 said:

That is why these outcomes are intended as features, not bugs, of proposals such as Roger’s....  

Smac, I’m done.

Your motte-and-bailey accusation goes well beyond saying my proposal would have harmful consequences. You are accusing me of knowingly pursuing a broader agenda, treating its harmful consequences as intended features, and concealing it behind a more defensible position. That is an accusation of both dishonesty and malicious intent.

And a central piece of your evidence is that I’m a smart guy. Apparently, I’m too smart to honestly disagree with your predictions, so I must secretly know you’re right. As if your confidence in your conclusions is evidence of my dishonesty.

I’ve explained why restrooms need not have the same rules as prisons, shelters, or sports. You treat those distinctions as camouflage. If I explain myself, I’m defending the motte. If I deny your accusation, I’m retreating to it. What could I possibly say that you wouldn’t interpret as further concealment?

You said you were working to improve your conversations by following Steven Collis’s Habits of a Peacemaker. You specifically highlighted resisting the temptation to caricature another person’s position. How does assigning me a malicious agenda, then dismissing my stated beliefs as a cover story, put that into practice? That is an extraordinarily cynical way to treat someone who has spent weeks explaining himself to you.

Your catastrophe analysis fails to engage with the Massachusetts evidence we’ve discussed. It doesn’t settle everything, but a long list of things that hypothetically could go wrong doesn't change the evidence about what actually happened when we allowed manly-looking people to use the women’s restroom rather than forcing them into the women’s as you want the law to do.

I’ve been sincerely trying to explain my point of view. You’ve chosen to treat those explanations as concealment of something sinister. There’s no productive conversation left under those terms.

Edited 28 minutes ago by Analytics