The coming clash between Roe v. Wade and the Equality Act

The Equality Act, which passed in the House, is dressed up to have language about discrimination generally based upon sex.  Everyone knows, though, that its real purpose is to ensure that so-called transgender people must be treated as if they really were their imaginary sex.  Everybody also knows that the ones who will suffer most from the Equality Act are women, who will find themselves marginalized and victimized by men.

I wonder whether it's possible to weaponize the left's beloved Roe v. Wade to prevent men from coming into women's locker rooms, bathrooms, jails, and hospital rooms.

To date, most of the energy about the Equality Act has been focused on the fact that it will destroy women's sports.  Men have a powerful biological advantage in sports, and a man who claims to be a woman maintains that advantage — indeed, he maintains that advantage even if he has hormone therapy.

But hormone therapy is not an issue under the act.  Instead, as the summary at establishes, the act protects feelings, not facts.  Thus, the rights under the act are handed out "in accordance with the individual's gender identity."  "Gender identity" is defined to mean "the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual's designated sex at birth."  No surgical or hormonal alteration is necessary.  If you feel it, you are it.

The act is absolutely explicit that (again, according to the summary) people who claim to be the opposite sex cannot be "denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual's gender identity."  Let's break this down: imagine a fully functional man who claims to be a woman but who identifies sexually as a lesbian — and yes, there are lots of men like this in the "transgender" subset.  Under the act, he will have full access to bathrooms, locker rooms, dressing rooms, hospital rooms, and prison cells — in other words, areas where women get naked and are vulnerable.  In England, a man claimed he was a woman and was sent to a women's prison, where he promptly raped four female inmates.  That's coming soon to a women's prison near you.

It occurred to me that this newfound right for men to share facilities where women are physically vulnerable crashes headlong into women's unique right to privacy as articulated in Roe v. Wade:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, [citation omitted]; in the Fourth and Fifth Amendments, [citations omitted]; in the penumbras of the Bill of Rights, [citation omitted]; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, [citation omitted]. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," [citation omitted], are included in this guarantee of personal privacy.


This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

While this right to privacy does not explicitly appear in the Constitution but is simply a manifestation of emanations from penumbras, it's been a "sacred" right as far as Democrats are concerned — at least when it comes to abortion.  It should continue to be "sacred" when women are protecting their bodies from any type of invasion, not by a fetus, but by a man.  I would argue that invasion can include physical touches, threatening words, and even "raping her with his eyes." 

Leftists will say that a man who claims to be a woman, despite fully functioning male parts and a "lesbian" sexual orientation, is a woman.  However, that shouldn't stop a woman from saying that the fact that he is a functioning male violates her constitutional right to privacy.  That is one emanation of a penumbra that should surely extend to a woman not to risk having to strip naked in front of a man who still desires women.

Image: Pro-abortion rally in St. Paul, MN, 2019 (cropped) by Lorie ShaullCC BY-SA 2.0.

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