Male's Privacy Invaded By F2M Transgender Observation

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Male's Privacy Invaded by F2M Observation; F2M Transgender Is Still a“Female” Regarding This Interest

WASHINGTON, D.C. (September 28, 2022) – In a ruling which might have implications regarding the controversial issue of whether transgender persons should be permitted to use set aside for persons of the opposite biological sex, a federal appeals court ruled that a male's privacy is invaded if he is required to expose his nude body to a search by a F2M transgender person.

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Although the strict holding of this important decision is limited to the facts of this specific case - a male prisoner with religious objections to being observed in the nude and stripped by a guard who is biologically female but self identifies as a male.

The basic principle that the sexual/gender privacy interest depends on the biological sex of a person, and not his or her perceived sexual identity, could have wide ranging implications regarding privacy in restrooms, locker rooms, showers, etc. where people must expose themselves to others.

As the court summed it up, ' [A] prisoner's right to be free from highly invasive intrusions on bodily privacy by prison employees of the opposite sex—whether on religious or privacy grounds—does not change based on a guard's transgender status,' notes public interest law professor , who has won over 100 sex discrimination cases, and has been called the 'Father of Potty Parity.'

The ruling came despite the fact that federal law prohibits discrimination against the prison guard because of sexual identity: 'Everyone agrees that complying with Title VII is a compelling governmental interest….

Title VII makes it unlawful to discriminate in 'terms, conditions, or privileges of employment' against an individual because of his 'race, color, religion, sex, or national origin.' … [Title VII forbids the prison's engaging in] an adverse employment action against its transgender employees.'

The judges recognized a very strong, well recognized, and legally protected interest in not being required to have one's body observed by a member of the opposite biological gender. More specifically it said:

'Courts have long recognized that sex is a trait relevant to inmate privacy. '[W]hile all forced observations or inspections of the naked body implicate a privacy concern, it is generally considered a GREATER INVASION to have one's naked body viewed by a MEMBER OF THE OPPOSITE SEX. . . . 

'The desire to shield one's unclothed figure from [the] view of strangers, and particularly strangers of the OPPOSITE SEX is impelled by elementary self-respect and personal . That 'basic fact of human behavior' sometimes allows or even requires sex-based adjustments to prison guard duties.' [emphasis added]

Here the prison sought to justify the invasion of privacy by arguing that 'gender' 'means something other than biological sex'; in other words, that observation of nakedness and a search by a biological female identifying as male is the same as observation of nakedness by another biological male. But the court rejected that argument, saying that:

'The undefined term 'sex' presumably takes its ordinary meaning that refers to male and female biological traits. . . . a prisoner's right to be free from highly invasive intrusions on bodily privacy by prison employees of the opposite sex—whether on religious or privacy grounds—does not change based on a guard's transgender status.'

If a person's right to privacy, from observation of nakedness by a person of the opposite sex. depends on that person's biological sex and not sexual identify, females would have a legally as well as a logical basis in complaining about having to share a restroom, shower, locker room, etc. with a M2F transgender person.

Since this decision is unlikely to be appealed to the , for fear that this conservative body would likely affirm the reasoning and make it the law of the land, it will be controlling law in the states which make up the Seventh Circuit, suggests Banzhaf.

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