The usual and expected point of attack against laws regarding the use of bath and changing facilities by transgender people is the Fourteenth Amendment’s Equal Protection Clause, arguing that they are denied the equal protection of the laws by being denied the right to use the bathroom or locker room that conforms with their sexual identity.
But in a suit against by a group that calls itself “Women in Struggle,” together with transgender and nonbinary people, has challenged Florida’s “Bathroom Ban” as a matter of denying expression under the First Amendment instead.
Plaintiffs challenge Fla. Stat. § 553.865, known as the Bathroom Ban, which charges with trespass anyone who uses public restrooms or changing facilities that differ from their reproductive anatomy present at birth and who refuses to leave when asked to do so. Fla. Stat. § 553.865 defines men as people with reproductive anatomy that produces sperm. It defines women as people with reproductive anatomy that produces eggs. And it presumes that no one outgrows these categories, or exists outside of them.
To the extent the law defines who is and is not a man or woman based upon anatomy at birth, it would be no different than a law that defines man or woman based upon their sincere gender identification. If it’s constitutional to define gender, and there is nothing to suggest otherwise, this definition is merely a legislative choice with which plaintiffs disagree. That plaintiffs dispute the definition is fine but immaterial. If the definition violates the Constitution, however, then there’s a problem.
This view of sex and gender causes irreparable harm for transgender, gender nonconforming, and certain intersex people (TGNCI people) because this community’s identities may differ from their sex assigned at birth. When TGNCI people walk, talk, dress, or use an affirming restroom, they communicate their gender identity in a way that society can understand. Fla. Stat. § 553.865 would ban this conduct and perspective and force TGNCI people to adopt the state’s view of sex and gender instead.
Yes, there’s a new acronym in town, and it likely won’t be the last. But I digest. The contention that the Florida law would “force TGNCI people to adopt the state’s view of sex and gender” is a curious one, given that the opposite would force others to adopt the TGNCI’s view of sex and gender. Either way, a view is being “forced” on someone, the two differences being that one is a majority view and the norm, while the other seeks to impose a new and novel minority view on the majority.
But are they not entitled to communicate their view that the definition of men and women are wrong, or at least inadequate, and should be changed? Are they not entitled to communicate by expressive conduct “that society can understand” that they do not fall within the historic and, in their view, wrongful paradigm that anatomy at birth defines their gender?
They plan to march and expect to need to urinate along the way. This will leave them with three choices, to hold it in, to go into the bathroom that does not align with their gender identity or to face arrest for using a bathroom that does.
All of these outcomes are unacceptable. At the root of each one is an acknowledgment that TGNCI people cannot urinate—or exist—like other people. The state cannot erase an entire community and threaten its members with criminal prosecution for lawful expression and assembly. Plaintiffs can demonstrate Fla. Stat. § 553.865 is unconstitutional and that it will burden their speech rights and cause irreparable harm so long as it remains in effect.
The argument that “TGNCI people cannot urinate—or exist—like other people” harkens back to equal protection, Of course they can urinate like other people, physiology being what it is, but the issue is where they are allowed to do so. As for the hyperbolic “exist,” this is mantra of transgeder rights, that any constraint on being allowed to do as they please without regard to its impact on anyone else erases their “existence.” Any accommodation or compromise, even though “other people” are subject to a multitude of rules and limitations on conduct with which they may disagree, find inconvenient or find offense, is unacceptable. Anything short of hegemony is, according to their battle cry, an effort to cease their existence.
So if their peeing into the toilet or urinal of their preference protected expressive communication under the First Amendment, a means by which they can show society in a way it will understand that they dispute the state’s definition of man and woman?
If you squint hard enough, there is a rationalization that transforms every physical act into a communicative one in one way or another. And indeed, there is communicative value in a march by transgender and nonbinary to challenge a law that would make it a crime for them to use a bathroom or locker room that doesn’t conform to their anatomy. But if taking matters a step further, to engage in the conduct they’re challenging, then no law would be constitutional as every challenge by physical conduct could be claimed communicative, thus obviating all limitations.
Consider whether a person whose seeks to communicate his belief that private property is wrong does so by breaking into someone’s home and occupying it. What about the person who wants to communicate that she believes a politician is bad, and does so by striking the politician. Does this conduct communicate his views? Arguably, it does. But it’s not the views that are prohibited, but the conduct. Much conduct has a communicative element, and yet it remains conduct and, as such, can be prohibited without regard to any ancillary free speech claims.
The First Amendment permits neutral time, place and manner restrictions on the expression of opinions. You can protest a court’s ruling all you want, but you have no right to go into the courtroom and disrupt proceedings to do so. Can you go into a bathroom to do so? If so, then a law criminalizing use of a bathroom by a person with the wrong anatomy would violate their free speech. But then, pretty much every law could be framed as a free speech violation by someone.