Someone on the Internet stated that the narrow definition of “gender identity” that would protect people of trans* experience without gutting sex-based protections will allow private citizens to do PANTY CHECKS in violation of the 4th amendment’s ban against unreasonable search & seizure! Specifically, someone stated:
The most obvious deficiency with this definition is that it would presumably allow any women in or near a public bathroom to become “panty police” and make a “show me your papers” demand of any other woman entering the bathroom. When a suggested alternative to a legal definition of gender identity that has worked well for decades rubs up against the Fourth Amendment (unreasonable search), we’re solidly in the realm of fantasy.
First of all, rubs up? Really? Fantasy?
We have much unpacking to do with this one.
What does the Fourth Amendment say?
Unreasonable searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Ok. What does this mean?
It means that the Fourth Amendment forbids the government from conducting “unreasonable searches and seizures.” This means that a law enforcement person cannot come into your home or search your clothing without your consent or a search warrant (with some exceptions, like an emergency). The Fourth Amendment only protects your places or things from unreasonable searches and seizures by the government in which you have a “reasonable expectation of privacy.”
Why did we emphasize government?
Because if there is no government action, there is no “fourth amendment” claim, and the idea of panty checks is hilarious. And gross. And seriously, I get questioned in the ladies room regularly. The conversation goes like this:
Straight Lady: Um, this is the Ladies Room.
Brennan: Yes, thanks I know.
Straight Lady: *Quickly dries hands and walks away*
Living in a civil society is inconvenient sometimes, because there are million of people in the world with their own wants, needs, demands and desires. Law making is about compromise, and anti-discrimination laws banning discrimination against one group should not completely subvert protections for another group. To the extent possible, we think activists should advocate for protections that do no harm to other groups.
The definition of gender identity we propose limits the people who can assert it to women (and men) of trans* experience. We want to protect these women and men. We also want to protect females. In most cases, the conversation will go as it goes now – as, presumably, people of trans* experience use the sex-segregated facility most comfortable for themselves now.
Here are cases that elaborate on the “NO STATE ACTION” problem with the amateur Internet legal analysis quoted above.
- The Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (U.S. 1989).
- Without proving state action, employees could not claim that employer, by terminating their jobs for failing drug test, violated Fourth Amendment prohibition against unreasonable searches and seizures in contradiction of decisions holding drug tests unconstitutional. Ritchie v. Walker Mfg. Co., 963 F2d 1119 (8th Cir. 1992).
- A husband and wife’s claim under 42 U.S.C. § 1983 for a Fourth Amendment violation, alleging that defendant police officers’ assault of husband was unprovoked and involved use of excessive force could not stand where evidence did not support finding that they acted under color of state law as they were off duty when altercation with husband occurred. Barna v. City of Perth Amboy, 42 F3d 809 (3rd Cir. 1994).
- Court rightly dismissed an employee’s Fourth Amendment claim against his former employer and a private physician. The employee claimed a Fourth Amendment violation after the employee was escorted to hospital for mental evaluation following his termination where neither employer nor physician were state actors. Andresen v. Diorio, 349 F3d 8 (1st Cir. 2003).
Life is sometimes INCONVENIENT, especially if you are someone other than the default white male (this is not hating on white males – this is just stating a truth). We know this. We want to affirm everyone’s humanity, and we want everything to go smoothly in society for everyone, but when your (gender identity) stuff “rubs up” on our (sex) stuff, we are going to push back!
This post originally appeared here.