The HRC Tries to Explain the Bathroom Rule…and Fails.

The Washington State Human Rights Commission is in damage control mode.  About a month after a rule allowing access to bathrooms based on gender identity and gender expression, the public is still outraged.

Legislative offices have reported receiving as many as a thousand phone calls and emails about the issue and as a result three bills have been introduced in an attempt to fix the problem. While the sponsors of these bills are all Republicans, conversations around the capitol show that concern about the implications of this new rule are definitely bi-partisan.

Earlier this week, somewhere between 500 and 800 people showed up at the Capitol for a public hearing on the issue, the vast majority of which were in support of legislation to nullify the HRC’s rule.

The public outrage has led the HRC to create Frequently Asked Questions (FAQ) document.  While the document represents a noble attempt to make the rules seem reasonable, the information it provides is not accurate.

For example, the FAQ document says:

The rules include a provision that transgender individuals cannot be required to use a gender segregated facility that is inconsistent with their gender identity.  The rules do not give protections to anyone who accesses gender segregated facilities under false pretense, nor do the rules protect anyone who acts in an illegal or inappropriate manner.

The issue that everyone except the members of the HRC seem to understand is that, since trans-genderism is a legal status that depends entirely on the feelings of the person involved, it is impossible to prove whether someone has false or true pretenses.

When Taylor Buehler was arrested inside a woman’s locker room at Everett Community College, he was arrested for voyeurism; for simply being present in a place where he did not belong.  He was also wearing a bra and wig.  If Taylor Buehler went into the women’s locker room at Everett Community College today, he would have a legal right to be present.

Don’t you dare try to make a legally meaningful difference between the two.

The entire purpose of the transgender movement is to eliminate a legal standard for what it means to be anything.

This is exactly the point the HRC makes only a few sentences later.

The definition in the law does not limit protections to persons who have certain anatomical characteristics, who have had gender reassignment surgery, or who have undergone any other medical treatment.

So how are you supposed to know whether someone is acting under “false pretenses” or not? You’re not.

Then they attempt to deal with the sharpest criticism of the new rule.

Q:        Can men now go into women’s bathrooms or locker rooms?

A:        No.  Only females can go into women’s bathrooms or locker rooms in a gender segregated situation.  This includes transgender females who identify as female.  The rules do not protect persons who go into a restroom or locker room under false pretenses.  For example, if a man declares himself to be transgender for the sole purpose of entering a women’s restroom or locker room, then the rule would not protect him.

Here we encounter the same problem.

What is the difference between a transgender female and a male?  The thoughts in his head.  How exactly is law enforcement going to prove that someone doesn’t feel female?  They aren’t.

But it gets even better.  In an attempt to provide clarity for businesses who want to know if someone is “legitimately” transgender or “just pretending”, the FAQ document says this:

The rules do not prohibit asking legitimate questions about a person’s presence in a gender segregated facility.  It is suggested that these questions be asked in a polite and non-confrontational manner.

This sounds reasonable.  The only problem is that the rule they actually passed says this:

(2) Prohibited conduct. Prohibited conduct may include, but is not limited to, the following: (a) Asking unwelcome personal questions about an individual’s sexual orientation, gender expression or gender identity, transgender status, or sex assigned at birth;

So…you are prohibited from asking “unwelcome personal questions” but apparently they’re ok with you asking “legitimate questions.”

Clear as mud.

Washington businesses can rest comfortably knowing that your liability will rest on a court’s determination of whether your question was “unwelcome” or “legitimate.”  Meanwhile, the rest of the world points out the fact that a question can be both legitimate and unwelcome.

They go on to assure businesses that…

In addition, it is extremely unlikely that someone who is pretending to be transgender, and who is ejected from a facility, will take the steps of filing a complaint or a lawsuit against that facility.

Clearly the members of the HRC have never met a lawyer before.  If your client is caught in the bathroom with a bra and wig and charged with voyeurism or indecent exposure, any last-in-his-law-school-class public defender will be able to argue that his presence in the girls locker room was lawful because he was “expressing” as a female. “Your honor,” says the lawyer as he picks up the HRC rule, “says right here in black and white. He had a right to be there.”

Filing the complaint against the business to show just how offended the defendant was for the “unwelcome questions” will be the cherry on top.

The irony is that the first time this happens, the very people on the Human Rights Commission who are today assuring businesses that this can never happen could be reprimanding the business involved for their intolerance and their rush to judgment.

But it gets worse.   Regarding those who might “pretend” to be transgender, the FAQ document goes on to say…

If they do so, then the investigation conducted by an enforcement agency will uncover the fact that the person was not being honest about their status, and thus is not protected under the law against discrimination.  Any individual who fraudulently claims to be transgender for the purpose of entering a gender segregated facility in order to engage in illegal activity may also be subject to criminal prosecution.

So…you can’t enjoy the privileges of being transgender unless you actually are transgender?  Have we learned nothing?  Clearly, the HRC is intolerant of the trans-transgender.  You know, those who identify as transgender but actually aren’t.

Apparently male and female are completely fluid concepts, but transgenderism is a title given only to the qualified.

What about the potential for increased crime in locker rooms?  According to their FAQ document…

This rule does not protect behavior that is criminal or inappropriate.  Anyone, regardless of their transgender status, who is behaving inappropriately in a restroom or locker room, can be required to leave.  Law enforcement should be called whenever criminal behavior is observed or suspected.

The problem is, that many people think “behaving inappropriately” extends to people with a penis who undress in the women’s locker room.  Until this rule was adopted, the police would have been able to intervene if that were happening.

But not now.

With the new HRC rules, simply exposing yourself or watching others undress is now a protected activity.

But there’s more from the FAQ document:

Q. Did people have an opportunity to provide input before the rules were put into place?

A. Yes.  The process for agency rule-making is set out in the law, and the Human Rights Commission followed this process….During the public comment period, not a single objection or fear was raised about the issue of transgender individuals using the gender segregated facility with which they identify.

The only possible explanation for the fact that no concerns were raised is that, regardless of what was posted on an obscure website, the public did not have a real opportunity to provide input.  Or if they did, they were not aware of it.

In their attempt to answer frequently asked questions, the HRC is saying, “Don’t look at what we wrote, look at what we meant.”

Unfortunately for them, Guttenberg did invent the printing press and most of us learned how to read.

If they want the words to mean something else, they need to write different words.  Or, maybe the rule is “trans-reasonable” and it only appears to be crazy.

Yeah, that’s it.  Everyone move along.

You can call your legislators through the legislative hotline at 1-800-562-6000 or email a message to all your legislators by clicking here.

5 replies
  1. Kathryn Mahan
    Kathryn Mahan says:

    I just have simple question. If a transgender woman is actually diagnosed with Gender Dysphoria, is under the clinical care of a competent medical team and can document that, and is acting modestly (like all other females in a particular restroom) do you consider it legitimate and appropriate for them to use a women’s room?

    The answer to this question is what separates someone with a legitimate concern over restroom safety from bigots.

    Here are some of the organizations that consider Gender Dysphoria a legitimate medical condition and recommend access to medical care for it;

    American Academy of Family Physicians
    American College of Obstetricians and Gynecologists
    American Medical Association
    American Psychological Association
    American Psychiatric Association
    National Association of Social Workers
    World Professional Association for Transgender Health

    If you take issue with transgender being a ‘real medical thing’ you’re arguing with the mainstream medical community.

    Reply
    • Joseph Backholm
      Joseph Backholm says:

      Gender dysphoria is a real thing. I don’t know anyone who is challenging that. What we take issue with is creating legal liability for those who believe that gender is a biological reality rather than a feeling.

      While people should have the right to believe whatever they want, they should not have the right to force the rest of the world to enable their personal struggles or face legal punishment.

      Anorexia is also a real thing, but no one would think of creating a cause of action against the producers of The Biggest Loser because they told the anorexic girl that she needed to gain weight not lose it.

      Believing something does not make it real, even if you are sincere and have good intentions. This rule is essentially the emperor punishing the boy who pointed out that he was actually naked.

      Reply
    • Clark Kent
      Clark Kent says:

      ARRRRRGGGH! DISAPPROVAL is neither BIGOTRY nor HATE! Who cares what the ‘mainstream medical community’ thinks? At one time at a certain place they believed all non-Aryans were sub-human! The issue is not ‘modesty’ but ALLOWING MEN IN THE FEMALE BATHROOM. Grow up!

      Reply
  2. margaret
    margaret says:

    In the news article noted above…”He admitted to officers that he was the suspect in an earlier voyeurism incident at Everett Community College on Monday, police said.
    In the earlier incident, he said he took a shower in the girls’ locker room for sexual gratification, according to the police report.”
    Opening the door for men to enter women’s bathrooms, showers, and locker rooms puts girls and women using such facilities at higher risk for sexual harassment and assault.

    Reply
  3. Cindy Vanhoff
    Cindy Vanhoff says:

    Thank you for the article.
    However, since we are not able to read people’s minds or actions, the following should be re-worded or eliminated. See below in quotes.
    We do not know what they will do. We can only assume this is an action they will take.
    And believe me, I am on your side…

    “The irony is that the first time this happens, the very people on the Human Rights Commission who are today assuring businesses that this can never happen will be self-righteously reprimanding the business involved for their intolerance and their rush to judgment.”

    Reply

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