Consent and Single-Sex Spaces


I love stumbling across something so compelling that it seems full of beauty. This piece by Paul Dirks, may be almost 4 years old, but it's still great. I only regret I didn't find it when it first came out.

It's a legal brief pointing out problems with the then-proposed (subsequently passed) Canada's Bill C-16, the equivalent of the proposed Equality Act in the US which would go further than the 2020 Bostock ruling in enshrining gender identity as a protected characteristic under the law. The issue Dirks engages is women's expectation of, and even right to, single-sex spaces such as bathrooms and locker rooms.

Dirks begins with the legal importance of consent. Quoting Heidi Hurd, he makes the point that "Consent, she says, is a 'capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography.'" That is very true, isn't it? Isn't that what #MeToo helped us see, that consent should be front and center in all intimate encounters? And doesn't physical intimacy involve a revelation of the body of the other, in some way, shape, or form?

Consider further: "Why is it that a peeping tom looking into a neighbor's bedroom window would be justly arrested for invasion of privacy, but when athletes shower together naked no one would ever think of laying charges? In the former example, the peeping tom may not even get a good glimpse of the nakedness he hopes for, while in the latter the body is viewed completely. One is a criminal invasion, the other a mundane, if awkward occurrence. What is the legal distinction between the two? The answer is simple: consent."

Dirks rightly argues, "privacy rights are never attached to a place, but to a person, according to their consent." And that means "sex segregation is not imposed in separate change rooms or showers simply because one is a women's room and the other a men's room. Rather, it is that the individuals within the one room have consented to different things about their bodily privacy than individuals in the other. The privacy right remains attached to the individuals and their consent, not to the spaces themselves."

Bingo. And thus, "when a woman enters a change room labeled 'women' it is with the expectation that what she will encounter behind those doors is female anatomy. By pushing through that door with that particular sign, she is signaling her consent to be willing to be exposed to breasts and vaginas, among other aspects of the female form. She further consents to baring her body to the eyes of other women, although in this matter she contains a greater amount of control. But until recently, there has been no question that her consent does not extend to be willing to be exposed to penises and other aspects of the male form, or to be viewed in a state of undress by males."

So what do laws based on self-identification of gender, such as the proposed Equality Act, do? According to Dirks, "Effectively, they strip her altogether, leaving her naked, without rights or power under the law to protect her personal dignity. The sign to the woman's locker room may still say the same thing, but it no longer has an objective referent. On account of the loss of referent, it no longer communicates anything to her. Because it cannot communicate, she is incapable of consenting. Except for the likelihood of meeting a male body there is no longer any viable distinction between the women's and men's spaces, thus there is no longer any viable consent or privacy right. As such, gender identity bills which allow for no objective criteria for entry into segregated spaces, constitute possibly the greatest attack on privacy rights ever known in our society."

What about using self-identification? Dirks comments, "But for whatever value self-identification may have in other matters relating to gender rights, it has none relative to bodily privacy rights. Bodily privacy is related de facto to the body. It reaches absurdity to imagine needing a locker room to safely undress one's brain, ego, or personality." Prisoners, for example (including in the United States), have the legal right not to be viewed in a state of undress by members of the other sex. So do asylum seekers and refugees under ICE control. How is it that prisoners and refugees have greater rights to privacy and to consent than that of American females?

So why is consent by females overlooked? Dirks suggests, "Gender policy proponents are happy to claim these effects on behalf of transwomen should they have to use a male space. These effects are legitimized. But if a female should claim these effects if bio-male transwomen were in their space, the effects are seen as illegitimate. As soon as one says that another's concerns based on effects are illegitimate, the efficacy of consent is severely diminished. For these and perhaps other reasons, one rarely hears a strong emphasis on consent when it comes to the application of gender-identity legislation to women's spaces."

Some have apparently more right to consent than others, which is a travesty of the rule of law.

So what does Dirks suggest? "If the only consideration was consent in the matter of bodily privacy, the policy everywhere would be banks of individual, fully enclosed, and locked unisex spaces. Each pool and sports facility would have thirty single-user change rooms with showers. Every shelter would have individual rooms, like a hotel. The idea is not undesirable; it is impractical . . . [S]egregation in these spaces is required on the basis of practicality as well as privacy. Here we apply the principle of personhood. The sex segregation of locker rooms and showers are not ultimately attached to the rooms themselves. Sex segregation is simply the most useful category in protecting individual consent. Any individual with a legitimate reason ought to be allowed to use a separate enclosed space if it is at all possible. We uphold their right of consent as much as possible. In the same way we uphold the right of consent for trans individuals as well.

"Fortunately, there is a solution which upholds the consent of both groups. Policies dealing with privacy-related segregation should work towards ensuring that facilities have third spaces which are fully enclosed, lockable, and unisex. In many cases these are already present in the form of disabled or family spaces. Governments may need to pressure facilities to provide more if trans individuals (those who have not yet had full sex-reassignment surgery) should require them. If consent-privacy truly is a concern for gender policy advocates, this solution should be embraced by both groups. Anything else spells the death of consent, and with it, the death of privacy."

If the #MeToo movement means anything, it is that the consent--especially the consent of women--must be an integral element of a healthy society under the rule of law. Anything less is a mockery of everything women have fought for so long and so hard.