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April 11, 2005

Gender Is A Social Construct; Doubly So When It Comes To Making a Stinky

Dudes are now allowed to use women's bathrooms. It's about f'n' time:

Earlier this month, a New York security firm settled a case that charged the company with unlawfully discriminating on the basis of "gender identity." In two incidents, representatives of the firm had questioned the use of the women's restroom by persons who, while biologically male, identify themselves as female.

By so doing, the firm thereby violated New York City's Human Rights Law, as construed in official guidelines promulgated in 2002. The settlement requires the defendant to pay each claimant $2500 and to take measures to comply with the law in the future.

Just days earlier, in an unrelated case, a New York State intermediate appellate court had issued a contrary ruling. The court concluded that the city's ban on transgender discrimination is not violated by requiring transgendered persons to use the restrooms designated for persons with their biological sex.

Resolving the conflicting authorities may require further administrative, legislative and judicial action at the city and state level. In the meantime, New Yorkers and others will be left puzzling over a surprisingly difficult question: Who should be permitted to use the men's and women's rooms, respectively?

Hmmmm... just an idea. How about men use men's bathrooms, and women use women's?

Transendered persons--people whose dress, mannerisms, speech patterns and social interactions do not match the typical pattern for those with their biological sex--are frequently victims of unfair discrimination.

A biological "man" who experiences life as a woman, and who speaks and dresses accordingly, may be no less capable of performing surgery or balancing corporate accounts than a man (or woman) who happily accepts the gender society prescribes for him (or her). And yet the transgendered person will, because of prejudice, have a harder time finding a welcoming employer.

Accordingly, it is perfectly appropriate, and indeed, laudable, for New York City's Human Rights Law to prohibit gender identity discrimination.

Note that the concept of "transgenedered" has been defined rather expansively here. It's not merely restricted to those who have undergone (or are undergoing) sex reassignment surgery, or to those whose genitals are indistinct or hermaphroaditic (as is the case with Hoke Malokey and, of course, JeffB.).

No, it also includes "people whose dress, mannerisms, speech patterns and social interactions do not match the typical pattern for those with their biological sex." Which, you know, also seems to include transvestites -- the majority of whom are actually straight, I'm told. (They just like to feel pretty... and who can blame us?)

I have no doubt that those afflicted (and I'll catch heat for that word, of course) with an ambiguous sexuality are subject to discrimination, conscious and unconscious, subtle and overt.

But I also think that women are entitled to know their bathrooms are a penis-free zone. That does not strike me as an unreasonable expectation.

It may be that there large corporations can, and should, provide "Co-Ed" or "Other" bathrooms on every other floor as a reasonable accomodation to that tiny fraction of the population whose sex is indisctinct or subject to debate. Somehow, though, I think New York's ultraliberal judges will find that the "every other floor" rule inherently discriminatory -- hell, half of three people working at a large corporation whose sex is indistinct might have to take the stairs or elevator to make a pee-pee -- and that there is an inherent stigma associated with "Third Way" bathrooms.

Questions like this always involve a balance of the competing (and legitimate) interests of a minority population and the majority. But for the liberal judges that invest the northeast courts, there is no balance -- the minority always prevails, and the majority's interests are always trumped.

So, ladies, you're on notice. If you're kinda hot and headed to the can, I just might decide I'm feeling a bit more in touch with my feminine side than usual. And I trust the New York Courts will back me up in my quest to spy through the cracks in the bathroom-stall's door.

Thanks to RCL.

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posted by Ace at 11:11 AM

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