Rebecca Phillips tried to shrink after her gasp caused the man’s eyes to turn and scan her naked body as she stepped out of the shower stall in the women’s shower. In the moments that it took her 17-year-old brain to process that she should cover herself with a shower curtain, she could feel his eyes roaming from her head to her toes.
Her hiding behind the curtain, waiting for someone to leave, was a typical reaction most people have to prevent others of either gender from staring at their naked bodies. And it was particularly embarrassing for Rebecca who, as a 17-year-old, was still too young to consent even if she was willing — which she most certainly was not!
No longer would the women’s shower or locker room in the YMCA in Santee in San Diego County, be a “safe haven” for her after this incident on Dec. 30.
Her second shock was when she told the management of the Y, and the management made Rebecca feel “As though I had done something wrong” while informing her that this “male-looking” person was “transgender,” which meant that this individual was allowed to shower wherever the individual pleased.
The YMCA statement was “As a community-focused organization, we strive to meet the needs of all individuals. We recognize that birth and gender identity are sensitive subjects. We rely on subject matter experts, laws and guidelines established by the state of California to ensure our policies are welcoming and respectful for all community members.”
Missing from any explanation to Rebecca was why the Y’s striving “to meet the needs of all individuals” did not include her needs? Or perhaps even a majority of “individuals” since 51% of the population is female.
The Y even refused to meet with Rebecca’s father even though he was responsible for her safety while she was a minor.
Decades ago this question hit the desk of this young Philadelphia lawyer when a human resources manager in Midland, Texas asked when, and if, the young, bright male engineer transitioning would permit him/her to use the women’s restrooms. I quickly learned that in an office in the middle of cowboys and oil rig roughnecks country, this was no laughing matter.
This manager wanted help in how to accommodate this engineer while also protecting the privacy rights of the women in their small office. Since I knew the law would not be helpful as even Title VII of the Civil Rights Act did not define even “males” or “females,” I decided that determining a person’s gender was not a legal question, but a medical one. The manager could require a note from the engineer’s physician indicating when medically he had sufficiently become a woman to be entitled to use the women’s restroom.
Almost half a century later, President Joe Biden’s nominee for the Supreme Court, Ketanji Brown Jackson, who decides cases involving women’s rights, testified in her nomination hearings in 2022 that she could not define “women” since she was not a biologist. After that response, no one bothered to ask her about defining “transgenders.”
What is the medical definition of “transgender?”
Mayo Clinic’s website provides, “Transgender is an umbrella term used to capture the spectrum of gender identity and gender-expression diversity.”
“‘Gender identity’ is the internal sense of being male, female, neither or both.”
“‘Gender expression’ is often the extension of gender identity that involves the expression of a person’s gender identity through social roles, appearances, and behaviors.” Under this definition, “gender expression” may, or may not, involve a person’s social roles, appearances and behavior.
“Those who identify and express their gender fluidity outside the gender binary, might not involve hormonal or surgical procedures.” Under this approach, even a medical professional would have a difficult time establishing, or refuting, whatever the person claims.
“Being transgender doesn’t say or imply anything about a person’s sexual orientation or physical or emotional attraction or sexual behavior.”
It appears that under the Mayo Clinics standards that even a physician must rely solely on the person’s word that they are transgender.
Now consider how the management at the Santee YMCA can implement the Y’s mission statement of “To bring together safe, inclusive, and welcoming programs to develop their minds, bodies, and spirit” while respecting the rights of all individuals and comply with the medical restrictions, where according to the Mayo Clinic, one cannot use a person’s actions or appearance (with or without clothing) to determine whether a person is transgender.
Does that leave the Y with any other means of identifying whether a person may choose to shower where he/she pleases besides his/her unsupported word? Is it a violation of his/her rights to even ask him/her?
What about the privacy rights of women to expect that the age-old tradition that showers are segregated by genders will not be violated without their consent? Perhaps warning signs would help although these signs could not be considered consent for minors who, like Rebecca, are not legally capable of consenting.
It’s a shame that in the almost half a century since my conversation with the manager in Midland, Texas, after 30 years of practicing employment law, I still cannot improve on that advice although Mayo Clinic appears to indicate that even physicians must rely on the unsupported word of individuals, and either way will violate the privacy rights of some people.
It’s sad that current laws appear to make it impossible for the YMCA and similar organizations to protect the rights of everyone.
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. His website is OneheartTwoLivescom.wordpress.com. Formerly, he taught law and business at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer” and “Law for Non-Lawyers.”
