Thread by @KDansky

Thread 👇

In light of recent events, I’m seeing lots of chatter about the interaction between laws that prohibit discrimination on the basis of “gender identity” in public accommodations and indecent exposure laws. Here are some thoughts.

I’m just thinking out loud here, so please don’t interpret this as legal advice. I’ll use D.C. as an example.

4 D.C.M.R. § 801.1 states: “It shall be unlawful for any person or entity, including agencies of the District of Columbia government and its contractors, to discriminate against a person in employment, housing, public accommodations, or educational institutions ...

on the basis of that person's actual or perceived gender identity or expression.” So places of public accommodation cannot discriminate on the basis of GI. I assume for the sake of argument that a spa is a place of public accommodation (although that is not a settled question).

Section (c) of that regulation states that discrimination includes: “refusing to provide goods or services of any kind; engaging in disparate treatment in the provision of goods and services; engaging in verbal or physical harassment; creating a hostile environment; ...

and denying access to restrooms and other gender specific facilities that are consistent with a customer's or client's gender identity or expression.”

If a person believes that he or she has been discriminated against on this basis, he or she can submit a form, located here: ohr.dc.gov/page/public-ac…. Once the form is reviewed, a formal complaint can be filed with the D.C. Office of Human Rights.

D.C. Code § 22-1312 (“lewd, indecent, or obscene acts”) states: “It is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act [].”

First, it’s important to note that these are entirely different laws. The first one is a regulation, and it is civil in nature. The second one is a statute, and it is criminal in nature. They do not, on their face, have anything to do with one another.

Let’s take a hypothetical scenario, where a man enters the women’s section of a spa in D.C. fully naked. The spa staff contact the police and ask him to leave on the basis that he is not permitted to be naked in the women’s area.

He leaves, and when the police arrive, the spa staff provide the police with the man’s contact information and physical description. The police find him and arrest him for lewd, indecent, or obscene acts under the criminal statute.

In the meantime, he submits the form and then the formal complaint with the D.C. Office of Human Rights.

Two things are likely to happen: (1) the criminal action will go before criminal court; and (2) the complaint will be heard by the Office of Human Rights (and might eventually go before the Office of the Attorney General). Both matters will proceed on separate tracks.

In the criminal action, he is likely to argue, by way of defense, that exposure of genitalia by itself does not rise to the level of being “obscene or indecent” when it occurs in the context of a place where people are expected to be naked.

This is a reasonable argument; no one would argue that it is “obscene or indecent” for a woman to be naked in a women’s section of a spa.

I do not have in front of me what the definitions of “obscene” and “indecent” are under D.C. law, but one dictionary defines “obscene” as “offensive or disgusting by accepted standards of morality and decency” ...

and “indecent” as “not conforming with generally accepted standards of behavior or propriety,” so let’s go with those definitions.

The state here would likely argue that even if exposure of genitalia in the women’s section of a spa would NOT meet these definitions when done by a WOMAN, exposure of genitalia in the women’s section of a spa DOES meet these definitions when it is done by a MAN.

As we know, he is then likely to try to make the case that he is actually a woman (and, depending on where he was born, he may have a birth certificate to prove it). At that point, any number of things could happen.

The state could argue that the birth certificate with an “F” sex marker is irrelevant because he is very obviously a man, or that it shouldn’t be considered because it is a legal fiction.

The judge could order the state’s attorney to refer to the man as a woman, which would confuse the hell out of everyone, but here we are. Scenarios like this could force important discussions about what a man is and what a woman is under the law.

The judge would enter legal rulings and the jury would make factual findings and ultimately render a verdict of guilty or not guilty.

In the meantime, this man is going to do his best to persuade the D.C. Office of Human Rights that the spa denied “access [him] to restrooms and other gender specific facilities that are consistent with a customer's or client's gender identity or expression.”

As far as I can tell, the outcome here comes down to what is meant by “actual or perceived gender identity or expression.”

DC law defines it as “a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.”

So, if the D.C. Office of Human Rights decides that a person “is transgender” based on that person’s self-described “gender-related identity,” it appears likely that he will win the civil case, regardless of what happens in the criminal case.

Bottom line: We don’t really know how all of this is going to work out. It seems possible that he could both win his civil complaint and be convicted of a crime). All I know for sure is that I will keep fighting. /End