A real live, legally valid same-sex marriage (?)

[Sanford Levinson]

I think these are legitimate questions, in the specific sense that I think
that the pro-ERA people made a mistake in scoffing at Phyllis Schafly's
argument that the ERA would make gender-segregated bathrooms as
illegitimate as racially-segregated ones.  Now, to try to answer Rick:

We begin with the premise that the state has a duty to treat Bridget
"equally" with all other citizens.  That is, as with marriage, I refuse to
believe that the state can refuse to provide her with any facilities at
all, on the grounds that she is exluded from the two sets of
gender-segregated facilities that are provided.  (In the case of marriage,
I reject any argument that says that transgendered individuals could be
left without the right of legal marriage.)

So could the state meet its equal bathroom obligation by providing separate
facilities for transexuals?  I'm disinclined to accept this, because, after
all, transexuals generally, I believe, view themselves as being,
ultimately, one sex rather than another, so that it violates the equal
treatment principle to force all transexuals to use the same restroom if we
don't adopt a general policy of unisex bathrooms.  So now what if we have
four sets of bathrooms:  Male, Female, Transgendered Male, Transgendered
Female?  Would that be all right?  I'm inclined to think that the answer
would be yes, but I'm not sure.  The transgendered male and females could,
after all, see this as precisely the kind of separation designed to
"oppress and annoy" that the Plessy majority assured us was prohibited by
the Equal Protection Clause.  And, of course, it is probably the case that
UT or Nebraska won't want to build all of the separate bathrooms.  So, at
the end of the day,  I'd allow the transgendered individuals to pick their
own sexual identity, which would, in Bridget's case, be female and say that
she indeed has a constitutional right to use the woman's bathroom.  That it
might make other women feel uncomfortable is, ultimately, of no greater
relevance than that some whites might feel uncomfortable sharing bathroom
facilities with non-whites (or vice versa).  So what's Rick's argument (or
that of the rest of you)?  Same analysis for showers.

Sandy Levinson

At 04:20 PM 11/10/1998 -0600, you wrote:
>I have a question for Sandy, one which actually came up in the article
>he attached to his earlier post. After Bernie becomes Bridget does he
>have a constitutional right to use public restrooms, lockerrooms,etc.
>set aside for women. Suppose Bernie/Bridget were a student at UT and
>wanted to shower in the women's lockerroom after gym class. Suppose
>other women complained and the University banned Bridget from using
>the women's lockerroom. Does this violate Bridget's constitutional
>right to be treated the same as other women?
>--
>                   ----------
>             Rick Duncan (rduncan at unlinfo.unl.edu)
>
>"Men plan, God laughs."
>