Some say that women and girls who believe that threat to our safety and privacy is heightened by opening the doors to such sex-specific facilities as public showers, locker rooms, battered wives and rape crisis shelters, hospital rooms, restrooms and prisons to male individuals – regardless of whether the male individuals identify as women or not – should compromise with gender identity ideology proponents.

Compromise 1: Male Persons Who Undergo Penile Inversion Surgery Are Women

The most suggested compromise is for gender identity advocates and advocates for women and girls to allow only male individuals who have undergone “gender-affirming” cosmetic surgery on their genitalia to access women’s and girls’ sex-based facilities.

I argue that this compromise cannot work.

Once you have established that some male persons can be women under the law – whether by their declaration or surgery – then it immediately becomes the civil right of every male person to access any sex-specific facility designated for female persons.

Why?

The policy would not withstand legal scrutiny. Transgender-identifying persons would challenge the policy in court, and the policy would be struck down as discriminatory.

You cannot legally bar entry to this population, whom you have agreed are women, based on whether they have undergone risky elective surgeries. Lawyers would successfully argue that, if these individuals are women, then they have a right to access facilities designated for women, and this access cannot be contigent on whether they have undergone procedures that are not medically necessary, lead to sterilization (infertility), have the possibility for severe complications, are not financially feasible for the poor and are usually inaccessible to youth.

If you agree that male persons can actually be meant to belong to the other sex and can fall into the category of women, then you cannot place further conditions hampering their freedom to access women’s facilities, and certainly not conditions so serious that submitting to them causes sterility, and have the potential for such life-threatening complications as infection or hemorrhage. Such a policy targeting one demographic would easily be struck down by the courts as unreasonable discrimination targeting the “transgender” populace.

Also, the policy is unenforceable. Who would check the underwear of male persons seeking to access women’s locker rooms or battered wives’ shelters to confirm that their testes have been amputated and their penises surgically inverted? Even requiring a demographic to present documents with information about their genitals to strangers in order to access facilities would inevitably be ruled an unreasonable invasion of privacy by the courts when a transgender-identifying individual challenged it.

Compromise 2: Male Persons Who Have Committed No Known Violent or Sexual Offenses Are Women

Another compromise often suggested, particularly for prisons, is to bar only male individuals who have been convicted of violent crimes or sex crimes.

First, this did not work in the case of Karen White, whose rapes of women prior to incarceration were not yet known before the inmate was transferred to a women’s prison. White sexually assaulted several women while in women’s prison, and was sent to men’s prison as a result. Not having a previous rape or violent crime conviction on record does not guarantee that an individual has never raped or been violent, or that the individual never would.

Female inmates are survivors of sexual abuse at such high rates that researchers have speculated that sexual abuse may be a “pathway to prison” for women. It is unethical to, as a social experiment, cage in vulnerable women with a person whose male biology causes strength that exceeds that of the average women, to make them take the standard prison group showers with this person. The same applies to refuge shelters that house women and children who are victims of domestic violence.

Second, transgender-identifying persons would challenge this law, and it would be struck down by the courts. While statistics from the US, England and Wales (see graphs below) show that nearly all violent and sex crimes are committed by men, there are women who commit violent or sex crimes. Transgender-identifying challengers would successfully argue that, if you would not send a woman to men’s prison for being a violent or sexual offender, then you cannot send a male person to men’s prison once you have agreed that the individual in question is a woman. Either male persons are women or they are not. If male persons are women, then committing violent or sex crimes does not make those persons not women. Therefore, the poor logic used to justify this condition would not withstand legal challenge.

Here are my thoughts.

Crime Perpetrator Demographics by Sex – England and Wales captured in the years 2011-2012 before gender identity classification became mainstream and affected sex-related data.

United States Federal Bureau of Investigation Arrests by Sex, 2017

Examples of Genitalia Surgery-Restricted Policies Leading to Self-ID Policies

In Canada, the requirement that a male inmate have surgery prior to transfer to women’s prison was successfully challenged in the 2001 court case Kavanagh v. Canada (Attorney General). The court found that the “particular vulnerability” of “pre-operative transsexual inmates” and “their need for accommodation” has a “differential impact” on “the group” and therefore, must override established policy of placing transgender inmates “with other inmates sharing their anatomical structure.” The court quoted Dr Diane Watson on behalf of the Canadian Human Rights Commission that it “‘is not only presumptuous but impossible’ to believe that anyone other than the individual concerned can determine whether or not sex reassignment surgery is a necessary procedure in any specific instance.” (While this finding was made in regard to doctors making it difficult for transgender inmates to access the surgery, the language can be employed for laws mandating transgender inmates to undergo surgery as a condition to access sex-specific spaces.) The court ruled that Kavanagh should be transferred to female prison despite still having an intact penis, and that Correctional Service Canada pay for the genital reconfiguration surgery Kavanagh wished to undergo after his transfer.

Similarly, the 2003 International Olympic Committee (IOC) policy of allowing male athletes who compete in female sports if they have reassignment surgery followed by at least two years of hormone therapy was overturned for 2016. IOC medical commission chairman Arne Ljungqvist, one of the experts involved in drafting the new guidelines, said about the reversal: “It is an adaptation to a human rights issue. … It’s a trend of being more flexible and more liberal.” Even policy requiring male athletes who seek to compete against female athletes to first undergo hormone therapy to lower their testosterone is being challenged as bigoted by transgender advocates. Cyclist Rachel McKinnon argues that mandatory testosterone blockers for transgender athletes violates furthers “transgender people’s oppression” and violates their human rights by “catering to cisgender people’s views.”

Policies that permit only trans-identifying individuals who undergo genitalia surgery to access sex-specific spaces are used as a foot in the door, and become a springboard for further legislation challenging the requirements for such procedures.

The Compromise is Men’s to Make

Any compromise to be made should be made by men. Just as women and girls share sex-specific facilities while some of us wear skirts and others wear pants, and have managed on a daily basis over decades of sharing facilities to not rape or beat up one another over differences in fashion, men in pants must get comfortable urinating and changing alongside their brothers in skirts. There is no logical reason that a male person in a skirt should trigger violence in a more traditionally masculine-appearing male observer. This issue is men’s problem, and men must resolve it amongst themselves. Women are not human shields that should be placed between two warring factions of males. If the two male groups choose not to get along and share spaces civilly, then the male individuals who identify as women must fight for their own facilities – just as women once fought and won sex-specific facilities.

Effectively removing women’s and girls’ rights under the guise of progressiveness is not okay, and not a “compromise.”