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Comment by someplaceguy | Hacker News Reader

> The LGBTQI+ category is far from empty, and some of that is physically impossible to refute, with genes not matching phenotype, and thus in this case excluding intersex people from taking a pee in any public toilet in TX, legally, IIUC.

Why would intersex people be legally excluded from taking a pee in a public toilet?

Don't their birth certificates have an assigned sex?

(Not that people carry around their birth certificates... but still, we're talking about a legal doctrine, not necessarily practical issues).

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They may have had one thing originally written on their birth certificate and ended up later with different physical genitalia, at which point they could have been arrested for either breaking this new rule or some other 'public decency' nonsense.

This isn't theoretical. Assignment surgery to try to get the best overall result is not going to happen at birth. It may take place many years later. It may take more than one go. That 'at birth' thing is arbitrary if for example you are a mix of male and female cells, or as in the story, genetically one thing but partly physically another. Especially if it takes some time to work out what the facts are for a given person.

> They may have had one thing originally written on their birth certificate and ended up later with different physical genitalia, at which point they could have been arrested for either breaking this new rule or some other 'public decency' nonsense.

What does one's genitalia have to do with breaking this new rule? I thought this new rule was about assigning people to the two categories of bathrooms based on their birth certificate, not their genitalia? (Not that I agree with it, because I'm assuming you can't change the birth certificate, but still).

To put it directly, if your original birth cert said "female" but you now have a penis (eg to match your actual XY chromosomes: could have happened to the subject of this story), and you go in to the female toilets as the new Bill would require, and anyone notices and complains, you are almost certainly in trouble for having a penis in female toilets as an adult under all sorts of other existing laws and custom.

But from what I understand, the new law was actually clarifying the issue, because it is assigning people to the two different types of bathrooms based on a clearly objective criteria (the assigned sex in the birth certificate), rather than one's genitalia which can be much more ambiguous and problematic to check/assert.

So I would think that the new law is actually making things much more clear for the situation you just mentioned, rather than more ambiguous and problematic (due to the existing laws and customs you are speaking of, which can be more subjective and therefore lead to the problems you mention).

If there were any issues (e.g. if someone called the police), the person in that situation could just show a picture of the birth certificate on their phone, which would clarify any possible confusion and would avoid getting into trouble, wouldn't it?

In my view, leaving things the way they are, or making things more subjective only serves to add to the confusion and/or add problems, rather than making things more clear (especially when we're talking about the law).

That said, if you are going to have separate bathrooms (and therefore categorize people), I don't think the birth certificate is the right way to do it, if it can't be changed post-birth.

I suspect that you haven't interacted with the police much. Especially very conservative ones.

If a woman is screaming that there's a man in their toilets, attempting to argue with them about your birth certificate isn't going to get you anywhere good, nor let you take a pee, so in practice you can't do it.

(Someone I know well, British working in France, when Britain was in the EU, was told by local police that she shouldn't be working even though by treaty law she absolutely was in the right. When she protested the police said "Try arguing that from inside the cell I'll put you in." She left that job and in fact moved to another EU country after that.)

Being put in an invidious no-win position for someone's political gain is bad. There seems to be a lot of it about at the moment.

I don't think this argument of yours is a good one.

In fact, if the police are as bad as you say they are, then not making things legally simple and clear is even worse for these situations!

If the law clearly says: "assigned sex in the birth certificate" == "assigned bathroom", then it's much easier to argue to the police that you're using the right bathroom (although again, I wouldn't use the birth certificate as it probably can't be changed).

If you don't have a clear and simple law like that one, and your sex is somewhat ambiguous, good luck trying to convince the police that you're using the right bathroom!

In fact, the example you used is a good one: the police probably didn't believe your acquaintance precisely because such treaty laws are so long and complex, with lots of edge cases that are outside the norm (and therefore unlikely for your standard police officer to be aware of).

Well we may have to disagree.

But if this whole issue is because women are frightened of predatory men in that circumstance then this issue is with predatory men not with (other) people that happen to be LBGTIQ+. The intersection is likely vanishingly small.

Politically easier to grandstand and bash an out group (and conflate them with predatory bad actors for lolz) than deal with bad behaviour properly?

> But if this whole issue is because women are frightened of predatory men in that circumstance then this issue is with predatory men not with those that happen to be LBGTIQ+. The intersection is likely vanishingly small.

The issue, I would guess, is not necessarily with predatory men that are also LBGTIQ+ (which would be vanishingly small as you say), but perhaps with predatory men that would claim to be LBGTIQ+, which these predatory men would have an incentive to do. This could be a much larger segment of the population, relatively speaking. That said, this is not the point I was arguing, as I don't have a clearly defined opinion about this.

What I don't understand is why people think that leaving things as subjective as they are (and therefore more prone to prejudices) is better than having simple and clear definitions and legal rules that can be adapted to each person's personal circumstances (again, assuming that you do want to have separate bathrooms).

Especially given what you said in another comment:

> That 'at birth' thing is arbitrary if for example you are a mix of male and female cells, or as in the story, genetically one thing but partly physically another. Especially if it takes some time to work out what the facts are for a given person.

Exactly. Since it would be difficult to work out what the facts are, it would be better to have a legally binding document that clearly says "you are allowed to go to these bathrooms". Then you would no longer have to "work out" these issues every time someone makes a fuss.

Although, I will repeat again that you'd need to allow this document to change after birth, as that would be required in some cases.

Oscar Wilde said "The truth is never pure and rarely simple," and legistating as if it is does not work well. There has to be acceptance of difference and nuance.

The point may be to try to avoid women (or anyone) being harassed in toilets: that is reasonable. But that has nothing to do with what happens to be on someone's birth certificate, especially someone already in a tricky circumstance through genetics or whatever.

The nuance is resolved in the courts. Presumably the judge would allow you to change the assigned sex when that is justified, after which you should no longer have the same problem because you were able to change your assigned sex to match your personal circumstances, and you'd have a document to prove it (or a photo of the document on your phone, at least).

However, you seem to be arguing that it's better to leave things as they are, in which there are no clearly defined rules, and whether there is "acceptance of difference and nuance" is a wild guess, depending on who you run into.

So in the worst case, every single time that someone makes up a fuss, you might be arrested and/or have to go in front of a judge. Every. Single. Time. Because you'd have no document that would clearly say "it's always OK for you to go to these bathrooms". I really don't see how that is better...

Please note that in this case the Bill refers to the "original" so no subsequent changes can be taken into account, which we agree is bad. This Bill was simply designed to be performatively cruel to a small out group, not actually solve any perceived issues, it seems. Or at worst was not prepared to accept any nuance about the reality of timing and genotype/phenotype of anyone not fitting the mythical binary.

You and I agree that there would be sensible things that could be done, eg making it clear that someone is able to use a toilet appropriate to their currently agreed/certified gender where appropriate without argument. (Some idiots would still make life unpleasant for them on occasions.) And indeed countries with gender recognition rules HAVE made things better for the people who need it, but this Bill was not any of that, it seems.

And in many cases these days toilets are simply safely ungendered, which often means shorter waits for women too.

One of the UK daily papers that makes the most clickbait cash out of this topic has (or had) entirely ungendered toilets at their London offices AFAIK. It's outrageous hypocrisy.

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