Transgender rights will undermine the equal protection of women

What Will Become of Equal Protection for Women?

by Adam J. MacLeod

Laws in Massachusetts and California requiring that sex-segregated facilities be open to both sexes will undermine equal protection for women.

California has followed Massachusetts into uncharted territory by requiring California schools to make sex-segregated facilities and activities available to members of both sexes. Those who advocated this move might not like all of the implications of what they have accomplished. Among the many likely casualties of these laws will be the logic of the Supreme Court's equal protection jurisprudence, which protects females from suspect classifications in law.
Earlier this year, the Massachusetts Department of Education (MDOE) issued regulatory guidance for Massachusetts schools concerning a recent state statute that prohibits discrimination on the basis of gender identity. MDOE interprets the statute to give students a right to use the bathroom, locker room, and changing facilities that correspond to the gender with which those students identify, regardless of their biological sex.
The MDOE directive notes that some students might be uncomfortable disrobing with a member of the opposite sex, but insists, "This discomfort is not a reason to deny access to the transgender student." The directive also encourages school administrators to discipline students who object to sharing a bathroom with a member of the opposite sex.
At the time, Andrew Beckwith and I argued that this development is part of a trend: judges and lawmakers are eliminating sexual distinctions from Massachusetts law, and driving out of public life anyone who perceives inherent differences between male and female. But the MDOE directive presupposes that many sex-segregated activities will persist; indeed, they will persist because at least some transgendered students want them to persist. A biological boy who identifies as a girl does so in part by using the girls' bathroom.
MDOE did what the state legislature declined to do. The legislature had earlier enacted a statute prohibiting discrimination on the basis of "gender identity," but pro-family forces in the Commonwealth defeated a provision in the original bill that would have given boys a right to use girls' bathrooms and vice versa. Yet MDOE proceeded as if the provision had been enacted.

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