Discrimination Is Legitimate When the Distinction Is Relevant

Author Amy K. Hall Published on 04/15/2016

Is it wrong to discriminate against biological males by denying them access to women’s bathrooms? When I was asked about this today, I pointed to a comment I wrote years ago on the blog:

When differences are relevant, it’s not an invalid systemic discrimination. For example, if two guys walk into a bar and the bartender says, “I can’t serve people like you—get out!” Is that wrong? Illegal? One can’t say until one knows why the discrimination is occurring. If the bartender is saying “get out” because the guy isn’t white, then that’s invalid. Why? Because a person’s race is completely irrelevant to the issue of drinking at a bar. But what if he says “get out” because the guy is only fifteen? In that case, the age is relevant because drinking affects youth differently, they don’t have the developmental ability to handle the impairment, etc. Yes, we systemically discriminate against fifteen-year-olds by law because of differences between them and adults, but it’s not invalid to do so.

I wrote that in 2008 as part of a discussion about same-sex marriage. My overall point in the comment was that just as we separate men from women in bathrooms because the differences between the sexes are relevant to bathrooms, so we ought to support opposite-sex marriage because the differences are likewise relevant to marriage. The example of the bathroom was meant to demonstrate the legitimacy of government discrimination according to sex when it comes to marriage (unlike discrimination according to race, which is irrelevant to marriage).

But instead of following the accepted bathroom logic forward to opposite-sex marriage, our society chose same-sex marriage and pushed its distinction-denying logic back to the bathrooms (as I predicted here and explained here). This is where we find ourselves now.

Is your biological sex related to what goes on in bathrooms and locker rooms, particularly when it occurs in front of other people? Yes. But so is biological sex related to marriage. As a society, we denied that was the case with marriage, and now we’re just following that reasoning to its logical, absurd conclusion.