The legal battle involving Camp IdRaHaJe (short for “I’d Rather Have Jesus”) is the sort of thing you get when the state assigns idiots to write regulations.
Look, as I have written repeatedly over many thousands of words, I recognize and respect transgender identities, and I think that transgender people deserve to be treated with dignity.
But you don’t have the right to flop out your penis in front of women in restrooms, locker rooms, dorms, or wherever. This holds whether you are a regular man with a penis or a transgender woman with a penis. This is as sensible as common sense gets.
Some exceptions
The 1987 film Robocop portrays integrated locker rooms, and neither the women nor the men worry about this. (ChatGPT lists other examples from fiction.) In our culture, though, a lot of women understandably feel uncomfortable sharing spaces with people with exposed penises.
Generally I don’t see a problem with transgender women using women’s restrooms that have private stalls, as almost all do. If we can’t have totally private restrooms (which would be best), transgender women using women’s restrooms just doesn’t cause substantial problems. Transgender women face a real risk of harassment if forced into men’s restrooms. And policing women’s restrooms is more likely to result in harassment of women who happen to appear more masculine.
But when a public restroom also is used for changing and the like, it probably should be segregated by genitalia (biological sex) rather than gender.
Terry Kogan argues that gender-segregated restrooms replaced unisex single-user restrooms largely because of state laws from the early 1900s mandating gender segregation. ChatGPT (despite a wrong turn) turned up a Wikipedia entry linking to a 1972 Colorado document mandating that toilets be “separate for each sex.” Obviously government should not discourage unisex single-user restrooms.
The IdRaHaJe challenge
Because rules from the Colorado Department of Early Childhood concerning camps did not explicitly mention the religious exception to gender rules, Camp IdRaHaJe worried that it would run afoul of the rules if it did not allow transgender girls into girls’ facilities.
In a June 24 release, CDEC stated, “Consistent with current law, none of CDEC’s gender-identity regulations have ever applied to or been enforced against child care providers that are churches, synagogues, mosques, or entities that are principally used for religious purposes, including Camp Id-Ra-Ha-Je.”
In a settlement, CDEC agreed to add clarifying language to its rules regarding the religious exemption. So now, in the absurdly long rules for camps, regarding transgender access to “gender-segregated” toilet facilities, showers, dorms and tents, and dressing rooms, the language now states, “This requirement does not apply in churches, synagogues, mosques, or any other place that is principally used for religious purposes.”
Leaving out other women and girls
Not only women and girls at religious events wish to avoid exposure to penises flopping about. Lots of secular women and women at non-religious events share the same concern. But the camp rules provide no broader exceptions.
The state’s public-accommodation laws begin with statutes 24-34-601. The main purpose of these laws is to prevent business owners from denying service to people “because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry.”
Nothing in state statutes requires women to be exposed to anyone’s penis. I mean, obviously. Come on now.
The civil-rights regulations allow for gender-segregated facilities and require that businesses with such facilities “allow individuals the use of gender-segregated facilities that are consistent with their gender identity.” Crucially, these regulations do not mandate gender-segregated facilities!
In other words, there is nothing either in state law or in civil-rights regulations that prevents a business from segregating restrooms by genitalia (biological sex) rather than gender. So it would be perfectly lawful to designate restrooms for “people with penises” and “people with vaginas” (or comparable language.) (Yes, specifically referring to vaginas would allow transgender women with vaginoplasty to use the “vagina” restroom, and that is not a problem.)
But the CDEC regulations do not follow state law (despite claiming they do) and instead require specifically gender-segregated facilities.
The CDEC rules state, “Campers must sleep in the same room or tent with individuals whose gender identity is consistent with their gender identity.” On top of sinning against the English language, this rule doesn’t even technically allow campers to sleep alone in a tent, much less only with people who have the same genitalia.
The rules also say, “Campers must be allowed the use of gender-segregated [yet partitioned] toilet facilities [and showers] that are consistent with their gender identity,” but at least the rules at this point provide the alternative of “private” facilities.
What the CDEC rules do not allow are facilities segregated by genitalia rather than gender. In this respect the CDEC rules go well beyond what statutes authorize.
The problem with religious exemptions
This case illustrates some of the problems with specifically religious exemptions to laws. Camp IdRaHaJe sued on religious grounds, and the state agency responded by emphasizing the religious exemption. Meanwhile, everyone else is left following CDEC’s nonsensical rules.
If those involved were focused on the rights of everyone, rather than the rights of some, they might have pushed for more fundamental changes of the rules in question
I’ll close by pointing out the obvious: If “transgender rights” means telling parents, “You must force your daughters to change, potty, bathe, and sleep in spaces where people expose their penises,” then “transgender rights” are going nowhere. But that’s not what transgender rights really mean or require!
Genitalia-segregated facilities where people may be nude, hopefully in conjunction with single-user facilities, are perfectly compatible with providing a welcoming environment for transgender people. We can make spaces welcoming for all. And that is what sensible and compassionate adults will do.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
