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

[Volokh, Eugene]

        I don't know where I ultimately come down on this, but I am a
bit hesitant to accept Sandy's argument.

        The problem, it seems to me, is twofold:  First, we accept the
notion that discomfort associated with being observed in a restroom by a
member of the opposite sex -- forget transsexualism for now -- is
legitimate, legitimate enough to overcome the normal presumption against
sex classifications.

        Second, this discomfort is quite nonrational.  I don't believe
it's silly or wrong or improper just because it may (or may not) be
culturally contingent; I just think it's not something that one could
justify through some rational argument from first principles.  The root
of the discomfort might lie merely in social convention or possibly in
some biological cause, but it doesn't lie in logical argument from first
principles any more than does our discomfort with people who smell bad.

        Third, we accept this nonrational discomfort with regard to sex
but we reject an equally nonrational discomfort with regard to race --
and ot because one is more "rational" than the other.

        So given this, I don't see why (A) the woman's desire not to be
observed in a restroom by an ex-man is closer to (B) the white's desire
not to be observed by a black rather than to (C) the woman's desire not
to be observed by a man.  If anything, I'd say it's the other way around
-- that A is closer to C (which is a permissible justification for
governmental discrimination) than to B (which is not).

        This of course doesn't prove that excluding male-to-female
transsexuals from women's restrooms is constitutional; but it does seem
to suggest that the argument Sandy gives doesn't prove the contrary.

Sandy Levinson writes:

> 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).