The Law And Sexual Orientation

Larry Price
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Wednesday - May 24, 2006
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The really big winners of the 2006 Legislative session were transgendered persons, thanks to the efforts of the American Civil Liberties Union, The Center; Gay, Lesbian, Bisexual, and Transgendered Caucus of the Democratic Party of Hawaii and many more civil rights groups who pushed for H.B. 1233, relating to civil rights.

The thrust of this legislation is to end discrimination against transgendered persons - people whose dress, mannerisms, speech patterns and social interactions do not match the typical pattern for their biological sex - who are frequently victims of unfair discrimination.

The public didn’t seem too concerned with the proposed law. It drew few objections from the pundits, and with few questions or reservations it was sent to the governor and became law, Act 76, without her signature on May 3.


The language of the bill was probably too complex to generate controversy. The bill hopes to put an end to discriminatory practices. Specifically, “Unfair discriminatory practices which deny, or attempt to deny, a person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, sexual orientation, gender identity or expression, color, religion, ancestry, or disability are prohibited.”

The bill spells out gray areas, like “Gender identity or expression includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.”

Hawaii’s judicial system has already ruled on the alleged abuse of three gay and trans-gender wards at the Hawaii Youth Correctional Facility. As I mentioned last week, the state agreed on a $625,000 settlement, with the money being split among the three teens and the ACLU. The court wants the state to come up with better policies to deal with sexual orientation at the youth prison.

There are some obvious ramifications surrounding the new law.

First, it is clear that the state is not going to tolerate any kind of discrimination, sexual or otherwise, and if it does, heads are going to roll and the lawsuits will wreak havoc on the taxpayers’ hard-earned dollars.

Second, all government agencies are going to need special training to understand the new law regarding “transgender” female self-imaging.

This will prove to be difficult and expensive. In a time of low unemployment numbers, it is going to be extremely hard to find correctional officers with psychiatric backgrounds and credentials related to abnormal behavior.

It’s interesting to note that the Minnesota Supreme Court upheld an employer’s decision to require a biological male employee to use the men’s restroom despite his “trans-gender” female self-image. The court ruled in favor of the company, holding that the law does not require an employer to grant access to restrooms based on the gender self-image of an employee.

It is perfectly appropriate to prohibit gender identity discrimination; however, it’s unfortunate that the first cases to test the prohibition concern access to sex-segregated restrooms. It could easily discredit the law in the public eye.


Whether or not single-sex restrooms are important has not impressed the judicial system. They have ruled on more than one occasion that sexual segregation is a form of sexual discrimination. Under the threat of litigation most managers of public restrooms have decided not to challenge the sexual orientation of any individual. Enforcement of segregated restrooms is a hopeless cause.

So don’t flinch or be embarrassed when you respond to biological differences of individuals in a public restroom. Many of our most distinguished colleges and universities have adopted co-ed restrooms in their dormitories.

Of course, the real concern here is privacy and safety. A public restroom is a confined space that criminals can exploit to commit sexual assault or other offenses that disproportionately affect women and are committed disproportionately by men. It’s probably a good idea for everyone to be careful in such situations, especially women. But since they almost always go to the restroom in pairs anyway, this new law may not be such a big deal after all.

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