Jeannie Suk: The Transgender Bathroom Debate And The Looming Title IX Crisis

This is good.
   I'm frankly surprised that The New Yorker printed something less-than-completely slanted toward the transgender activist position...but it does include some anti-male stuff...so maybe that did it...
   Or maybe I underestimate The New Yorker.
   And, actually, the "anti-male" stuff to which I refer is...well...true. Contemporary feminism is loaded with anti-male sexism...but it seems to me that there's not much discussion of the fact that it's males who are by far the biggest source of violence. Like, crazy biggest. There's definitely just something wrong with a lot of dudes. You know it, I know it...feminists know it too...so why it doesn't get more play over there I'm not sure... Writers who spend innumerable column-inches decrying "mansplaining" and "manspreading" and everything else man-related...don't really seem to spend much time talking about the biggest, weirdest, worst, most characteristically male vice: the propensity for irrational, unjust violence. This has puzzled me for a long time...
   Anyway...that's one of the big problems here: we've got to be concerned about violence against men who appear to be women ("transwomen" in the PC vernacular) using men's restrooms.
   Anyway, Suk writes:

In chastising North Carolina, the Justice Department explained that if non-transgender people may use bathrooms consistent with their gender identity, then denying transgender people access consistent with their gender identity constitutes discrimination on the basis of sex. Similarly, the Dear Colleague letter states that the federal government “treats a student’s gender identity as a student’s sex for the purposes of Title IX.” These interpretations of federal anti-discrimination law are new and surprising. It is not at all obvious that the “sex” in sex-discrimination law means not sex but gender, let alone “an internal sense of gender,” as the Letter says. But it is also reasonable to interpret sex-discrimination law to prohibit discrimination against transgender people. Given that single-sex bathrooms have never been seen as constituting sex discrimination, the tricky question is whether limiting them based on biological sex, rather than gender, does indeed discriminate on the basis of sex. [my emphasis]

   Yep, that's what I was just saying. Except I'd put it more forcefully: those arguments/positions are completely nuts. I mean...majority opinion in Bush v. Gore-level nuts. Worse than the arguments of the majority in Bush v. Gore, actually... They're bad arguments/positions even by the denigrated standards of academia. If they can succeed in the courts...I will basically lose the last of my faith in the law. That such arguments survive in (as Nagel refers to them) "the weaker regions of the humanities and social sciences" is one thing...that they can survive where getting things right matters is something else entirely.
   In effect, what the DoJ is doing here is taking a rather difficult-to-justify institution (sex-segregation of public restrooms) and an entirely incoherent theory of sex, and using them together to argue for a position according to which people like me are legally obligated to use the men's room...but someone exactly like me but who claims to feel as if he's a woman can use the women's room...or, I suppose, must use the women's room...right?
   Both of the competing positions seem to make more sense: (a) segregate public restrooms by (actual) sex. Period. Like we've been doing; (b) don't segregate public restrooms by sex. What doesn't make sense is: segregate public restrooms by sex...then decide you don't like that...so make up an incoherent theory of sex in order to make exceptions in order to get the outcome you do like...and pretend it's segregation by sex.
   Look: I'm not wild about such arguments, because they're close to counterproductivity arguents...but: one reason to think philosophically is to force consistency on ourselves so that we don't whimsically commit ourselves to some dumbass ad hoc theory that causes trouble elsewhere in our theory of the world. So. Even if you aren't interested in admitting that the positions and theories being deployed by the DoJ make no damn sense, you might at least reflect on the fact that we have not yet begun to recognize what else we are committing ourselves to if we commit ourselves to this obviously false theory of sex. (For one thing, it would force revisions in biology. We'll now need a new term to mean what 'sex' has always meant, since 'sex' will have been hijacked to mean something that it has never meant.)
   Anyway, back to the policy options: OTOH, one might argue: what we need here is a messy compromise: people should use whichever restroom is least disruptive, given their appearance. I think this might end up being the least-bad alternative...but no one should have much confidence in that. We really do seem to be opening the door to a (possibly) more dangerous country for women if we do that.  And another good point by Suk: the left has just spent the last several years arguing that women are already in near-constant danger of sexual assault...  But, then, the effort to force the far left (or the far right) toward consistency has never been successful...