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Washington State’s Bathroom Laws: Remedying Discrimination with Discrimination

In December 2015, a new Washington State rule took effect mandating that both public and private entities allow individuals to access sex-segregated facilities—including restrooms, locker rooms, and “facilities where undressing in the presence of others occurs”—according to their preferred gender expression or identity. In other words, public and private entities must allow men claiming to identify as women to use facilities designated for women, and vice versa for women claiming to identify as men.

For good reason, pro-family Washingtonians have started a campaign to collect enough signatures to get Initiative 1552 on the November ballot. I-1552 would “require schools to maintain separate facilities for boys and girls and allow businesses to manage private areas in the way they feel is best for them.”

Aside from the obvious privacy and safety issues the “bathroom rule” raises, it is revealing to consider how the rule suffers from a more immediate defect: fundamental incoherence. To see why, one merely needs to observe how Leftists have twisted our understanding of sex to make the case for their social agenda—thereby establishing an arrangement that implements the very type of discrimination that they purport to be combatting.

Federal and state laws forbid discrimination on the basis of sex, and have done so since the mid-twentieth century. Yet a commonsense exception to these laws has always existed to allow public and private entities to separate facilities based on biological sex. For example, Title IX of the Education Amendments of 1972 forbids educational institutions from discriminating based on sex. If the dictates of this law were applied without exception, they would forbid schools, colleges, and universities from separating bathrooms or locker rooms based on sex. Realizing the problems inherent in this application, regulators carved out an exception for sex-based discrimination in restrooms, locker rooms, and shower facilities, so long as the facilities provided for each sex are “comparable.” Similarly, Washington State’s law governing public school facilities allows school districts to provide separate facilities (including toilets and showers) for male and female students.

These exceptions to anti-discrimination laws stood in place for decades without eliciting the faintest public protest. Individuals with male genitalia used facilities designated and designed for men, and those with female genitalia used facilities designated and designed for women.[1] Moreover, when these anti-discrimination laws were written, there was no concept of “gender identity” or “gender expression” as separate from biological understanding of sex.[2]  This means sex-segregated facilities have, since their inception, discriminated on the basis of sex.

The new theoretical distinction between gender identity/expression and biological sex has triggered all sorts of problems where none existed previously. Nevertheless, the Washington State Legislature decided to codify the distinction by forbidding discrimination based on gender identity and expression. Nearly ten years later, Washington’s Human Rights Commission—an entity created by the Washington Legislature to administer and enforce Washington’s anti-discrimination law—issued the December 2015 bathroom rule.

The Human Rights Commission’s Executive Director, Sharon Ortiz, insisted at the time that the rule simply clarifies existing state anti-discrimination law. This should come as a surprise to those of us who have read the law in question, which explicitly protects “[t]he right to be free from discrimination because of . . . sexual orientation,” with “sexual orientation” defined as “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”[3] This right encompasses “[t]he right to the full enjoyment of any of the accommodations . . . [and] facilities,” such as public restrooms, free from gender identity/expression-based discrimination.

Yet far from forbidding such discrimination, the December 2015 bathroom rule in fact codifies gender identity-based discrimination. Facilities labeled for women, for instance, are now accessible only to individuals who identify as women, regardless of their genitalia. Biological men who identify as women have the same access to women’s facilities as biological women who identify as women. Biological men who identify as men, as well as biological women who identify as men, may NOT access those same facilities. Likewise, facilities labeled for men are accessible only to individuals who identify as men, again regardless of their biological sex. The distinction is not based on sex but on the gender with which one identifies. In other words, the new rule purporting to interpret a law forbidding discrimination based on gender identity effectively discriminates based on gender identity.

The Commission could argue that transgender males (biological women who claim to identify as men) and transgender females (biological men who claim to identify as women) do not have to use the facilities that conform to their gender identity. However, this arrangement would contradict the Human Rights Commission’s own guidance on the bathroom rule. Per the Commission’s “Questions and Answers” document released in tandem with the rule, “Only females can go into women’s bathrooms or locker rooms in a gender segregated situation. This includes transgender females [i.e., biological men] who identify as female.”[4] (The same, one would presume, applies to biological and transgender males).

Even if the Commission were to suggest otherwise (or simply amend the guidance document), forcing men identifying as men and women identifying as women to use the facilities that match their biological sex while allowing transgender males and transgender females to select whichever facilities they please would constitute further discrimination, this time on the basis of both sex and gender identity. Instead of eliminating discrimination, the Commission has simply replaced one form of discrimination with another.

In reality, the Human Rights Commission is not trying to eradicate discrimination. The purpose of the rule was to force on society a new radical scheme of social engineering.

To remedy these circumstances, Washington voters would do well to pass I-1552 and restore order to an arrangement plagued with incoherence.


Christina is a freelance legal blogger from the “other” Washington (Washington, D.C.). She received her law degree from American University and her undergraduate degree from the University of Notre Dame.


[1] Exceptions, of course, existed. Young children, for instance, are allowed to use the facilities that conform to the sex of the parent or guardian whom they are accompanying, even if the child’s sex does not match that of the parent/guardian (i.e., mothers can bring their young sons into the women’s restroom).

[2] For those not yet familiar with the terms, “gender identity” is defined as “[o]ne’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves.” According to this theory, one’s gender identity may not be the same as one’s biological sex. Similarly, “gender expression” is the “external appearance of one’s gender identity, usually expressed through behavior, clothing, haircut or voice.” Again, one may choose to express a gender that is different from his or her biological sex.

[3] Ironically, Leftists also insist “sexual orientation”— “an inherent or immutable enduring emotional, romantic or sexual attraction to other people”—has nothing to do with one’s gender expression or identity. However, the law equates gender expression and gender identity—two concepts that are distinct in Progressive parlance. It seems the Washington Legislature hasn’t quite grasped the nuances of Progressive gender theory.

[4] The Commission released a Q&A document, “Questions and Answers Regarding WAC 162-32-060,” containing answers to frequently asked questions concerning the December 2015 bathroom rule. In response to the question, “Can men now go into women’s bathrooms or locker rooms?” the Commission responds with an emphatic “No.”

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New Bathroom Rule: It’s Worse Than We Thought

 

Last week, news broke about a new rule passed by the Washington State Human Rights Commission creating a statewide mandate that businesses must allow men into women’s bathrooms and locker rooms if they say they are a woman.

But as details have become available, it appears the final version of the rule is actually worse than the proposed rule. Here are some of the “highlights”:

  1. Mandate on Schools as Well as Businesses

While the draft rule imposed a mandate on every business in the state, it provided discretion for schools to deal with each case on a case-by-case basis.

However, the final rule removed any discretion for school officials and mandates that all schools must allow boys into the girl’s locker room if they claim to be a girl.

  1. Women will be removed from the women’s restroom. Naked men will not.

The rule states that it is illegal to ask someone who is confused about their gender to use a separate facility for the benefit of women and children who might be uncomfortable.

However, once a man begins to undress in the women’s locker room a person who “expresses concern or discomfort…should be directed to a separate or gender-neutral facility.”

So, all you women who are uncomfortable with the naked guy over there, “Please come with me and leave him alone.”

  1. The rule bans lots of speech

In addition to prohibiting reasonable accommodations that recognize the public’s right to privacy along with the bathroom needs of the transgendered, this rule targets a wide range of speech.

It is illegal to ask “unwelcome personal questions about an individual’s sexual orientation, gender expression or gender identity, or transgender status.”

The commission provides no guidance to the public about how they are supposed to know which questions are unwelcome before they ask them.

It is also illegal for a business to deliberately “misuse” someone’s preferred pronoun. If a man believes he is a woman, but you refer to him as a “he” anyway, he can sue you.

However, you should be careful not to ask questions about which pronoun he prefers. Remember, if that’s an “unwelcome question” he can sue you for that.

It is also now illegal to use “offensive names, slurs, jokes, or terminology regarding an individual’s sexual orientation or gender expression or gender identity.”

The fact that “offensive” is an undefined and completely subjective term that provides no guidance to the public about what they can and cannot do is apparently lost on the commission.

The best advice may be to just stop speaking. As we all know, someone is offended by everything.


WATCH: Joseph Backholm answers some FAQ’s on the new bathroom policy

Video

Frequently Asked Questions

As the public wrestles with how to respond to this, here are some of the most frequent questions we have been asked in the last few days.

1.  Is this really true?

Very few other media outlets have covered this story. That has led a lot of people to wonder if there isn’t some kind of mistake. Sadly, there is no mistake. Other news outlets have began to cover the story here, here, and here.

2. What will happen if I violate this rule?

The Human Rights Commission has the authority to issue fines and create a range of orders intended to “eliminate the effects of an unfair practice and prevent the recurrence of the unfair practice.”

The rule specifically states that businesses and schools open themselves up to civil liability for violations of any of their new rules.

3. Who made this rule anyway?

The Washington State Human Rights Commission was created to help enforce the Washington State Law Against Discrimination. There are five members who are appointed by the Governor and are not subject to election. You can find them here.

While rule-making authority is frequently delegated to agencies for the purpose of enforcing laws the legislature passes, the concern is that a policy of this magnitude and scope far exceeds what the legislature intended or the public expected when the non-discrimination law was passed.

4.  What can I do?

While the Human Rights Commission has authority delegated to it by the legislature, the legislature has the authority and responsibility to correct mistakes made by agencies or commissions.

You can contact your legislators through the legislative hotline at 1-800-562-6000 or email them all at one time by clicking here.  If we know your address, this tool allow you to email them all at once.

5.  Isn’t this outrage just much ado about nothing?

If you believe a rule of this kind would never be exploited by people with bad intentions, simply search for Jason Pomares, Norwood Smith Burnes, or Taylor Buehler on the search engine of your choice.

Burnes exposed himself to children in a Walmart restroom in 2010 while Pomares dressed as a woman and snuck into a Macy’s bathroom to videotape women in 2013.  Buehler wore a bra and wig and slipped into a bathroom and locker room in 2012 to watch women at Everett Community College. All three men were arrested.

In addition, Christopher Hambrook sexually assaulted multiple women in a Toronto women’s shelter while “identifying” as a woman.

Sexual predators look for opportunity. This provides it.

UPDATE: Click here to see Governor Jay Inslee’s response to the Human Rights Commission’s bathroom rule.

Everything we do is made possible by friends like you.  If you can chip in $5 or more to help restore rational bathroom policies, we’d be grateful.

Residents React to Unsafe Bathroom Policy, Delay Vote

As reported Wednesday, the Colville School District Board of Directors attempted to quietly pass a policy that would allow boys to enter girls bathrooms, and vice versa, with no questions asked.

That is, until 300 Colville residents showed up at the school board meeting last night to express their concern.

Under intense and likely unexpected public pressure, the board of directors decided to table the new proposed bathroom policy to a later date.  In the meantime, parents, residents, and concerned citizens are encouraged to read this memo from Alliance Defending Freedom, explaining why schools are not legally obligated to allow students to use opposite-sex bathrooms, showers, and locker room facilities.

If you have any questions or would like to get involved in the effort to protect children from this dangerous policy, please email info@fpiw.org.

New YMCA Policy Worrying Parents — Act Now!

Article by Rich Stuart, Oct. 29, 2015

On Oct. 5, the Tacoma area YMCA partially reversed a policy of opening locker rooms, showers, and bathrooms to the opposite sex, after alarmed members and citizens protested to YMCA officials. The policy, begun without notice in April, extended to 165,000 Pierce-Kitsap County members.  It allowed any members to use the facilities of the opposite sex if they identified with that gender — no questions asked.

In speaking to YMCA officials, members emphasized that they wanted transgender persons fully included in YMCA activities, but that the private showers and bathrooms, which they were already using, provided the comfortable and correct alternative to the April policy. These private facilities are available to anyone with special needs, including families with young children.

Reacting to citizen input, the YMCA reversed the policy in the locker rooms and showers of nine family YMCA branches in the Pierce-Kitsap County Association. However, the policy remains in full force at the two downtown Tacoma YMCA’s and in all bathrooms of the family YMCA’s, so the fight is far from over.

A Brutal Week

On Monday, Sep. 28, word trickled out that a home school PE group had arranged that their locker room be cordoned off at a YMCA branch, after reports that a man was seen dressing in the women’s locker room.

Alarmed parents and citizens in the community feared that the plight of these children may not be limited to the one YMCA branch, but could be extended to people of all ages in all YMCA branches in the Pierce-Kitsap County Association. They saw also that anyone could abuse this policy by pretending to identify with the opposite sex to enter their and commit crimes of voyeurism, indecent exposure, and even worse. A man could even be present with an undressed girl alone at slow periods when no one else was in the locker room. Overwhelmed with shock and disbelief, the few parents and citizens who heard about the policy prayed, and then they acted.

The YMCA had given no notice and had placed no signs at the entrances of locker rooms and bathrooms warning members that they might encounter persons with the anatomy of the opposite sex inside. Overwhelmed with shock and disbelief, the few parents and citizens who heard about the policy prayed, and then they acted.

Citizens and members were urged to call the branch YMCA’s and the association office to ask if it was really true that members ‘identifying’ with the opposite sex could enter locker rooms, showers, and bathrooms — with no questions asked.  The word spread to the local pastors associations, and they, too, called called YMCA officials to express their serious concerns.

At the end of the week, exhausted YMCA officials said they had fielded over a thousand phone calls.  With four hours notice on Sunday, the YMCA used its website and social media to call an afternoon meeting with concerned members and citizens at the YMCA branch where the policy had first come to light.  But only thirty members of the public caught wind of the meeting and attended.

Trying to control their anger, these concerned citizens told top YMCA officials that they should reverse the policy immediately.

Late the next day, Monday, Oct. 4, the YMCA officials returned calls to those who had left messages and announced that they had partially reversed the policy in the nine family YMCA branches, though it would remain fully in effect in the two downtown Tacoma YMCA’s and in all bathrooms.

Many questions remain to be answered.  How could it have ever been law that required the YMCA to institute the policy as they claimed, if after one week they reversed a large portion of the policy?  As for the rest, there are actual state laws against voyeurism and indecent exposure.  These crimes are much easier to commit with impunity in locker rooms, showers and bathrooms where the policy is in effect, according to a Puyallup Police Department spokesman.

On Sunday, Nov. 1, concerned citizens will be meeting in Tacoma with the Family Policy Institute of Washington’s Grassroots Director, Danille Turissini, to learn how to carry this cause and others to the legislative halls of Olympia.  If anyone wishes to attend, please contact Rich Stuart at rsdavidssling@gmail.com.

Why I Voted Against the Transgender Bathroom Policy

The Montesano City Council recently voted to pass a transgender policy allowing children to use the bathroom of their preferred gender rather than their biological gender.  The Montesano School Superintendent, who supported the policy, sent a video to the school board members featuring a deaf, transgender child the hope of encouraging them to support the new policy.  The video can be found below.  Caleb Backholm is a member of the Montesano School Board and wrote this response to the Superintendent.  Caleb Backholm is also the brother of FPIW executive director Joseph Backholm.


 Dan-

Thanks for sending this out. I did find it to be an interesting story. It raises several points that we discussed and I debated whether to respond or not. But obviously, I have decided to go ahead and send you my thoughts. This story lays out a couple of interesting points though that serve to illustrate why I voted against the measure.

The first reason though isn’t addressed in the video, that boys and girls are different and should be treated differently when appropriate. Allowing a child to self-identify their gender will create an unsafe environment in the bathrooms and locker rooms. I am very strongly opposed to my children sharing a locker room with members of the opposite sex. Beyond that, this policy will threaten the viability of girl’s sports. Many girls will be forced out of sports for competitive reasons if we fail to properly discriminate based on gender.

The second reason though runs deeper and is of an even greater concern to me.

At the beginning of the story, the girl asks the question, “Why did God make me like this?” The question isn’t answered in the video, but there were two distinct problems that she had. One, she was deaf, and two, her mind and body were incongruent in regards to her gender. Part of why this particular story is so interesting is that the parents tried to solve the two problems in opposite ways, as I’ll describe.

The answer to the question she asked, is that God didn’t make her like that. She wasn’t designed to be deaf. She was human, with ears, and was designed to hear. We live in a world of decay and sometimes we don’t work as designed. So here we see the parents made efforts to restore her to the way she was designed to function. The cochlear implants enabled her to hear and that was wonderful.

But she had another problem. She wanted to be a boy rather than a girl. Set aside the issue that 5 years old is far too young to try to make a determination like that. There is almost no functional, practical difference between a boy and a girl at five, and this girl had no idea what they were. Sure, boys tend to be more rambunctious and girls tend to play with dolls more, but the significant, relevant differences between the sexes don’t show up until during and after puberty.

Be that at is it may, the parents made efforts again to fix a problem — this issue of her body being one gender and her mind the other. Here the problem I have with this issue starts to emerge. The video gives the impression that the reason they did this is that they wanted the child to be happy. That seems good on the surface, but it’s not a good goal. Seeking happiness is unwise, but seems to be the only concern of the parents. I think even getting the hearing aids was probably done with wrong motives, so that the child would be happy. But that’s not good reasoning. The reason to get hearing aids should be to do what you were designed to do – hear, in this case. It would certainly make her happier, at least at first, but that is a pleasant side affect, not the goal.

If happiness is the goal, most children would choose to not go to school. They would be happier at home playing, at least for now. If happiness is the goal, drug addicts will use drugs. It makes them happier when they are high. Some people are happier when they lose weight and slip into anorexia. But we are not designed to function with drugs in our systems, or dangerously underweight, so we should seek to abandon that desire.

In this story, the parents try to match body and mind, which they rightly recognized were out of sync. The problem is they chose to change the wrong one, which was a major error on their part. How can I be so sure it was the wrong one? It’s a valid question.

We have to go back to design for the answer. Our sex was not designed to change. In fact it cannot be. We can alter our appearance, but we can’t change our gender. Do what they may, they will never change her chromosomes to XY. She will never father a child. It doesn’t happen. We have literally billions of examples of this without an exception that I know of.

Our minds, on the other hand, were very much designed to change. They change constantly. In fact, the entire point of education, is to change and mold minds. Kids have little knowledge and even less practical application skills of their knowledge, i.e. wisdom. That’s why they go to school – to literally change their minds, so that they don’t stay in the ineffective condition that they are in at that age.

The parents in this story have done a significant disservice to this child in failing to teach her how to properly change her mind. How to master her thoughts rather than be mastered by them. She will encounter many, many more struggles in life and will need a firm foundation to rely on in decision making. That foundation is the question, “How am I designed?” not, “What will make me happy?”.

I feel bad for kids (and adults) that struggle in this area of gender identity. But I also feel bad for those with eating disorders and drug addictions. It can be a very hard struggle. That doesn’t mean I would ever council them that, “This is who you are, accept it.” If the science tells us I am operating outside of my design, I need to change something.

This skill of mastering our emotions and mind is among the most critical that a human can learn. That is the primary reason I so strongly disagreed with this transgender policy. We are in the education business, and we are sending the exact wrong message to our students, that “If it makes you happy, do it.” The truth is, if we function outside our design, we will be less effective in life. As adults, we know we will all forever have countless thoughts, struggles and temptations to try to pull us away from where we should be. Laziness, greed, drugs, anger, violence, selfishness, etc. Some are more detrimental than others, but the list is almost endless and it lasts our entire lifetime. We have to know how to resist and master them, not be run by them. It’s not easy I admit, but it is important.

There’s a prayer or saying that goes something to the effect of, “God, help me to change what I can change, accept what I can’t change, and give me the wisdom to know the difference.” On this point, the parents, and the school board, got it completely backwards. We cannot change our sex, but we can change our minds. And in many cases in life, we should.

In short, I don’t want my kids to seek to be happy. Or to be unhappy. My want, is that they discover what they were designed for and flourish. I think this policy doesn’t send that message.

So this was a pretty long reply. But I think it’s an important subject, and besides, you started it. :) Talk to you soon and hope you have a good weekend.

The video he was responding to can be found here.

 

Port Angeles School Board Update

Last Thursday, the Port Angeles School Board met to vote on whether or not to make school bathrooms gender neutral. The vote would have determined if a boy who says he is a girl should be allowed to use the girls’ restroom (and same for girls who say they are boys). However, the school board decided to table the vote indefinitely (for more information about the meeting, click here).

The vote was tabled due to the numerous calls and emails sent to the school board in response to the vote, prior to Thursday night. These calls came from the citizens of Port Angeles who were upset with the fact that the school board would even be making this decision. This isn’t a state-wide decision; this is happening at the local level with school districts.

During election years, most people tend to focus on the state or federal elections, but local elections also have a huge impact on our state. So what can we do to make a difference?  Are local elections too small to make a difference?  If we elect like-minded people into local offices, their decisions will make an impact on the rest of the state.

Stories like the Port Angeles School Board have been occurring around the nation, and once again, a school district in Washington was faced with this issue. If a similar situation happens in your school district, please let us know and we will help get the word out and alert your community.
 

Why Boys in Girl’s Bathrooms?

There’s a conflict between non-discrimination laws and religious freedom.

Where religious freedom exists to limit government’s intrusion into matters of conscience, non-discrimination laws invite government into private dealings and empower them to force people to do things they otherwise would be unwilling to do in the name of ending discrimination.

As non-discrimination laws become stronger, religious freedom becomes necessarily weaker.

That is why florists, photographers, and bakeries are being forced by governments to do things that violate their beliefs despite the fact that this is an acknowledged and unambiguous assault on those individual’s rights of conscience.

But religious freedom isn’t the only thing being harmed by non-discrimination laws.

Good sense and public decency appears to be in the crosshairs as well.

While religious freedom is being taken away in the name of stopping discrimination based on “sexual orientation” (for a good article on why anthropologists say sexual orientation didn’t exist until 150 years ago, click here), many people don’t know what “sexual orientation” means.

In many jurisdictions, including Washington State, the definition of sexual orientation includes “gender identity”, “gender expression” or “transgender.”

This is where things just get silly.

Consider how this has been playing out all over the country:

  • A San Antonio Macy’s clerk, named Natalie Johnson, was fired from her job because she told a man in a dress that he could not use the women’s dressing room.
  • In Batavia, New York, a male high school teacher began dressing as a woman in anticipation of a sex-change operation.  Parents who wanted their children removed from the class were told that was not possibe because New York’s disability laws protected the teacher.
  • A Catholic Hospital in Daly City, CA paid a $200,000 settlement in a discrimination lawsuit that was filed against them after they declined to perform “breast augmentation surgery” on a man who claimed to be a woman.
  • A 5th grade boy at Asa Adams Elementary School in Orono, ME claimed to be a girl and as such wanted to use the girl’s restroom. When the school assigned the boy his own, separate bathroom, the parent’s filed a complaint against the school for “implicitly isolating” their child by not allowing him to use the girls restroom.  The Maine Human Rights Commission ruled against the school saying it had unlawfully discriminated against the boy. 

These examples are just the start.

If a 100 pound, anorexic girl tells you she feels obese, you help her see herself in a way that conforms to reality. If that same girl tells you she feels like she’s a man, why should the response be different?

The way we feel does not change reality.

Non-discrimination laws are undoubtedly driven by good intentions.  But it is apparent that they have ventured far afield of what they were originally intended to do — eliminate racially based segregation.

Tonight, the Port Angeles School Board will be voting on whether to allow boys dressed as girls into the girl’s restrooms at school.  As the father of three daughters, I say absolutely not.  And I’m quite sure I’m not alone.

But unless we like boys in girls restrooms, it’s time to start evaluating just how far we are willing to go in the name of “non-discrimination.”