Consent is a crucial component of privacy that empowers individuals and affirms human dignity. It is consent that permits us to receive and express intimacy. It is consent that regulates our respect for the privacy of others. It is consent that bestows on individuals, rather than society, the power to draw the precise boundaries around their own privacy. —Steven Wilborn
There is nothing more pivotal in the matter of personal privacy than consent. This is true not only in private places like our own dwellings, but in public places as well: change rooms, locker rooms, shelters, public showers, and camp cabins.
Sadly, but perhaps inevitably, these spaces have became a battleground as lawmakers and the public wrestle over competing rights related to sex, gender, privacy, and security. While a significant majority of the public approve generally of protections for transgender individuals, applying these preferences to shared segregated spaces typically marked “women” and “men” have met with significantly less public approval.
An Angus-Reid poll in September 2016 found that while 84 percent of Canadians approve of special treatment for transgenders generally, when faced with a bathroom question to which there were three possible answers: gender-identity-based, “It depends,” or “Biologic sex,” only 41 percent supported full transgender preferences. A Vox-Morning Consult poll of 2,000 U.S. voters similarly found that “although a plurality said they support laws that prohibit discrimination against trans people, they were divided on whether trans people should be able to use the bathroom that aligns with their gender identity.”
In one of the only polls to ask about locker rooms, a Crux-Marist poll found only 27 percent in favor of opening bathroom use. While there is significant variability in poll results, support for transgender facility use is almost always significantly lower than goodwill towards transgender people generally. What accounts for this disparity?
There is good reason to believe the public concern has to do with the right of consent in the matter of bodily privacy, especially for females. This is not a minor consideration. Heidi Hurd has spoken eloquently about the “moral magic” of consent. Consent, she says, is a “capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography.”
Consent Matters Immensely
Why is it that a peeping tom looking into a neighbor’s bedroom window would be justly arrested for invasion of privacy, but when athletes shower together naked no one would think of laying charges? In the former example, the peeping tom may not even get a good glimpse of the nakedness he hopes for, while in the latter the body is viewed completely. One is a criminal invasion, the other a mundane, if awkward occurrence. What is the legal distinction between the two? The answer is simple: consent.
When a person steps into a locker room, change room, shelter, or camp cabin, she or he is consenting to a set of unwritten, but well-understood, guidelines. There is no contract, verbal assent, or signature, but consent is given nonetheless, and it is given the moment the person enters through the door marked “Women” or “Men.” In so doing, they consent not only to remove their clothes, but some of their privacy rights, all in accordance with the meaning of the sign on the door.
In “Privacy Rights,” Adam Moore states, “One of our most cherished rights, a right enshrined in law and notions of common morality, is the right of individuals to control access to bodies, places, and location. Violations of this basic right are seen as some of the most serious of injustices.” Gender-erasure legislation, such as Bill C-16 just passed into law in Canada, constitutes just such a serious injustice as it removes from persons, particularly females, the right of consent concerning their bodily privacy in spaces like change rooms and showers.
Cases of Stripped Rights
So what is the case law on bodily privacy? In Stanley v. Royal Canadian Mounted Police(1987), four female members of the Alberta R.C.M.P. alleged sex discrimination due to a lack of work at lock-ups where the policy was that prisoners “must be guarded by persons of the same sex.” After a lengthy tribunal involving many expert witness, the tribunal agreed that the sex-differential was an important aspect of prisoners’ privacy rights: “If the general interest in personal privacy is an important one to us, the specific interest in not being viewed while in states of undress and using the toilet by strangers of the opposite sex must be said to be of particular importance.”
Citing York v. Story (1963) it continues, “in respect of the interest in not being viewed in states of undress by strangers of the opposite sex, ‘We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one’s unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self- respect and personal dignity’.”
While privacy rights of male prisoners have not always fared as well in the United States, Karoline Jackson says,
female inmates’ claims of invasions of privacy appear to have been taken more seriously with somewhat favorable results. In Forts v. Ward, ‘female prisoners filed suit protesting the placement of male officers in housing areas where the female prisoners could be viewed while partially or completely undressed. The female inmates claimed that this placement deprived them of their constitutionally guaranteed right to privacy. In contrast to the arguments challenging the existence of male inmates’ privacy rights, the state in this situation did not even dispute that the female inmates retained a constitutional right to privacy while incarcerated. Similarly, in Rushing v. Wayne County, the female inmate’s right to privacy was not even contested by the state. In Lee v. Downs the court upheld a jury verdict for a female inmate who had been forced to disrobe in the presence of male guards. In Torres v. Wisconsin Department of Health & Social Services, the Seventh Circuit concluded that a state could exclude male guards from its female prisons in order to promote the female prisoners’ rehabilitation without violating the guards’ right to equal employment opportunities.
If courts have generally upheld the privacy rights of (especially female) prisoners, whose personal rights are significantly curtailed, how much more should they protect the rights of free citizens in public shared spaces?
Courts Recognize Sexes Have Reasons for Freely Separating
Another area the gender wars have played out is at women’s-only gyms. In Stopps v. Just Ladies Fitness (2006), a human rights case in British Columbia, the tribunal dismissed a male’s complaint of sexual discrimination when he was not permitted to join Just Ladies Fitness. The tribunal’s ruling borrowed heavily from a similar U.S. case, LivingWell v. Human Relations Com’n (1992).
The commission argued these women had no reasonable basis to feel embarrassed because society does not find it objectionable to exercise with the opposite sex. In answering this, the court said:
… Privacy interests are not determined by the lowest common denominator of modesty that society considers appropriate. What is determinative is whether a reasonable person would find that person’s claimed privacy interest legitimate and sincere, even though not commonly held. Nothing in the record supports, nor does the Commission seriously challenge that these women do not sincerely hold these beliefs or that a reasonable person would not find these beliefs legitimate.
This is highly significant, as both American and Canadian courts have recognized sex-segregation boundaries of bodily privacy as legitimate, even when fully clothed, and even when many men and women wouldn’t share the same need for this level of privacy.
Paul is a family man with an amazing wife and five children who pastors at New West Community Church in BC, Canada. Although a conservative, he is working right across the political spectrum to ensure that women's spaces stay safe from predators. Paul is the organizer of the WOMAN Means Something