Laws against women being topless conflict with protection for transgendered?

A friend who is passionate about sartorial freedom sent me “Belligerent, topless soccer fan, 23, charged with ‘indecent exposure’ to 7-year-old boy” (Fox News):

A female soccer fan who was caught watching a game while topless in the presence of a child has been charged with “indecent exposure.” … arrested Saturday at TCF Bank Stadium in Minneapolis after a 7-year-old boy spotted her … She was charged with indecent exposure, a gross misdemeanor charge, and could face up to a year in jail or a $3,000 fine.

It is not illegal for a man to be topless, right? And the government is not supposed to discriminate against transgender citizens, right? So why wouldn’t a slam-dunk defense against a charge of being topless be “I identified as a man during that soccer game”? If the government comes back with “But you are appearing in court today in women’s clothing,” the accused criminal can simply say “gender is fluid.”

Readers: As a practical matter, how can these laws be enforced in a transgender age?

32 Comments »

  1. Joe Shipman

    October 12, 2017 @ 12:59 pm

    1

    That’s different because shut up.

    (That’s how Glenn Reynolds summarizes the explanation impertinent questions like yours get from our cultural commissars. You’re notsaposta point out Inconsistencies ever, because that proves you’re a bad person who is too Aspie to figure out that most reasons given for politically correct directives exist only as fig leaves that people can point to so they can pretend there is a reason for their opinions other than the real reason, and which are not intended to be logically scrutinized but only pointed to.)

  2. Neal

    October 12, 2017 @ 1:22 pm

    2

    This post begs the question that laws making it illegal for a woman but not a man to be topless in public should exist at all.

  3. Joe McGuckin

    October 12, 2017 @ 2:03 pm

    3

    … I could be arguing in my spare time

  4. Joe McGuckin

    October 12, 2017 @ 2:05 pm

    4

    Hmm, where do you draw the line that exposing one’s breasts for feeding is nurturing to the child but a wanton display of mammaries to the same child may be child abuse? I think there’s some sort of cognitive disconnect here…

  5. Viking

    October 12, 2017 @ 2:27 pm

    5

    I am curiously with Neal on this one!

  6. Joecanuck

    October 12, 2017 @ 2:30 pm

    6

    It’s not often I get to feel a smug sense of superiority about my country, but…

    https://en.m.wikipedia.org/wiki/Topfreedom_in_Canada

  7. superMike

    October 12, 2017 @ 2:44 pm

    7

    @joecanuck Canada and San Francisco… It seems it’s only legal to bare skin where no one in their right mind would want to be. Wake me up when you can strip down in L.A., Vegas, or Palm Springs. @Joe that’s an interesting double-standard as well.

  8. superMike

    October 12, 2017 @ 2:44 pm

    8

    mod: oops, typo “be bare”

  9. Jim Howard

    October 12, 2017 @ 3:05 pm

    9

    Here in deplorable Texas anybody can go topless all they want in any public space.

  10. Joe Shipman

    October 12, 2017 @ 3:58 pm

    10

    Mike, I have no idea what you mean by “double standard”. I am making a general reference to Philip’s habit of making fun of what he perceives as inconsistencies in what he experiences as political conventional wisdom. It wasn’t intended to take a specific side on the topless issue, just to poke fun at his disingenuousness.

  11. philg

    October 12, 2017 @ 9:39 pm

    11

    Neal: I hope that I’m not https://en.wikipedia.org/wiki/Begging_the_question because I imagine myself to be logical.

    My post assumes that the laws won’t change and wonders “How can these laws be enforced?” given changes in how Americans think about gender.

  12. Neal

    October 13, 2017 @ 12:47 am

    12

    philg: If we assume the law is not changed and is justified, then someone claiming as defense that they identified as a man at the moment they were topless would need to convince a judge or jury that the claim was sincere and not a dodge. This would require the judge or jury to make a judgement about the intent and sincerity of that claim which is pretty much what judges and juries do routinely.

  13. philg

    October 13, 2017 @ 8:43 am

    13

    Neal: Certainly your comment is a good example of American faith in litigation. But how would it work in practice? The justice system in the U.S. operates slowly. Thus the jury that you posit is hearing evidence perhaps two years after the arrest. If you were on that jury, what kind of evidence would you want to hear to establish the true gender ID of the topless individual during a two-hour period of time two years ago? What would help you see into the heart and mind of the accused? Given that gender is not necessarily persistent, what is the “truth” of gender identification that the litigation process you envision would be establishing?

    [Separately, what difference does it make whether or not a law is “justified”? The government still tries to enforce laws even if some (or a majority of) people think that the law is not “justified,” right?]

  14. Neal

    October 13, 2017 @ 11:59 am

    14

    @philg: I made no expression of faith in litigation; I made an observation about the way the existing justice system works. The fact that the justice system operates slowly may introduce difficulties in enforcing the law under discussion, but those difficulties would apply to many laws and would not be related to the fact they are being enforced in “a transgender age” and are therefore off topic. To answer your question, I would expect to see the same kind of evidence which I would expect to see if the government asked me to look inside the mind of a car driver who had struck a pedestrian and determine if the act were deliberate (possibly decades after the incident).

    Separately: You are arguing (so far unconvincingly) that living in a “transgender age” introduces some fatal difficulty with enforcing the subject law. The implication is that such a difficulty demonstrates that the ideas of those advocating for a “transgender age” are inconsistent or invalid. Even if you eventually identify some such difficulty, if the subject law were not justified it would make this implication invalid even if the question under discussion was not mooted.

  15. philg

    October 13, 2017 @ 12:07 pm

    15

    “the same kind of evidence which I would expect to see if the government asked me to look inside the mind of a car driver ”

    Can you be more specific? How does this work? A person attends a soccer game and is not wearing a shirt. This individual doesn’t talk to anyone else at the game. The government calls a biologist to testify that the individual’s DNA contains XX chromosomes. The accused says “I identified as a man during the soccer game.” If the government wishes to falsify the accused’s statement, who is the next witness and what question is that witness asked? Alternatively, what question could the accused be asked on cross-exam that would falsify the “I identified as a man for those two years two years ago” statement?

  16. Neal

    October 13, 2017 @ 12:32 pm

    16

    “who is the next witness and what question is that witness asked” … “what question could the accused be asked on cross-exam that would falsify the “I identified as a man for those two years two years ago” statement?”

    The same kind of witnesses and questions which would be asked if a car driver had struck a pedestrian and subsequently claimed it was an accident and the government wished to falsify their testimony.

    In both cases, the government must prove beyond a reasonable doubt that the accused testimony about their own state of mind was false. So how, exactly, does the fact we are living in “a transgender age” introduce some unique or fatal barrier to the enforcement of the subject law?

  17. philg

    October 13, 2017 @ 1:01 pm

    17

    Are you sure that your example of a vehicular homicide lawsuit requires a jury to get inside the mind and heart of the driver?

    https://en.wikipedia.org/wiki/Vehicular_homicide lays out some of the laws and most of the elements seem to center on “recklessness”. So it wouldn’t be a defense to say “In my heart I was driving cautiously” and witnesses would be testifying about what the driver actually did rather than about what the driver felt. So a witness would talk about whether the driver consumed alcohol prior to driving, whether the driver was speeding, whether the driver went through a red light, etc.

    So witnesses might give different opinions about how fast the car was going and whether a light was red.

    What are the corresponding topics on which you’d expect to hear testimony at the “topless soccer spectator” trial? You keep saying that it would be the same as after a car accident, but I’m not seeing the parallel. It would help if you could tell us a concrete question that would be asked of a witness and also who that witness might be (if not the accused topless individual).

  18. Neal

    October 13, 2017 @ 1:16 pm

    18

    philg: My example didn’t concern vehicular homicide, it concerned a driver who was accused of premeditated murder (i.e. deliberately killing someone by striking them with a vehicle they were driving).

  19. philg

    October 13, 2017 @ 1:57 pm

    19

    Neal: That’s great, but who would the witness be in the “topless soccer spectator” trial and what would he or she (“they”?) be asked if the prosecution wanted to disprove the accused’s statement of gender ID at the time of the toplessness?

  20. superMike

    October 13, 2017 @ 2:30 pm

    20

    All kinds of people are topless at burning man, and it doesn’t seem to harm anybody.

  21. Neal

    October 13, 2017 @ 4:34 pm

    21

    philg: We’re getting deep enough into your hypothetical that the answers start depending on the specific circumstances. If a person testified at their trial that they identified as a male at the time of the crime, then upon cross examination I would think the prosecutor would ask questions about their gender identification at other times and under different circumstances to try and get them to make statements which were inconsistent with each other, inconsistent with other evidence, or which in demeanor demonstrated insincerity to the judge or jury. Again, you have not explained how this would be significantly different than a prosecutor establishing intent (or rebutting in cross examination a defendant’s assertion of lack of intent) during a murder trial.

  22. mishka

    October 13, 2017 @ 4:35 pm

    22

    @philg
    The question to the next witness: did he/she go to the mens bathroom and/or did he/she pee standing?

  23. philg

    October 13, 2017 @ 4:53 pm

    23

    mishka: An awesome idea. Thanks! But what if the accused’s gender is so fluid that it changes during the trip from the seat in the stadium to the restrooms? Or what if the stadium is in California and is thoughtful enough to provide “all-gender” restrooms?

  24. Rick

    October 13, 2017 @ 5:13 pm

    24

    Another question to ask: What do you do with plastic army men?

  25. the other Donald

    October 13, 2017 @ 9:32 pm

    25

    Some questions are not answerable. philg, I think this troll post has evoked more response than any other so far.

    Punters may read “Sapiens: A Brief History of Humankind”, which touches on the distinctions between sex and gender and between biology and abstraction (or myth). tldr version: biology is factual and unbiased, abstraction or myth only exists in the thoughts of homo sapiens

  26. Neal

    October 15, 2017 @ 9:43 pm

    26

    the other Donald: There are some questions which are not answerable, and some questions which are difficult to answer. In most cases, whether or not a person is sincerely transgender or just making the claim to avoid a charge is not one of them.

  27. philg

    October 16, 2017 @ 1:24 am

    27

    It is so easy for Neal to tell if someone “is sincerely transgender” that he can’t come up with a single idea for a witness or question! Maybe Neal’s strategy is similar to the classic jury shirker who says to the judge “I can tell if a man is guilty just by looking at him.”

  28. Neal

    October 16, 2017 @ 12:18 pm

    28

    philg: There is never going to any one magic question which will always expose a witness who is willing to lie about their transgender identity (or about their intent to commit a murder). That does not mean exposing someone who is lying about their transgender identity would be particularly difficult. Gender identity is a fundamental part of almost everyone’s personal identity. Very few people would even think of lying about it; most of those that do would not be able to pull it off convincingly. By the time of a trial, most people would have left a rich history of public behavior before and after the incident which would contradict their transgender identity claim. Most people would also have other strongly held beliefs about themselves which would contradict their transgender identity claim. The general technique would be to ask a series of questions intended to elicit statements which contradict other evidence or other statements made by the witness and to give the judge and jury a chance to evaluate the demeanor of the witness while making those statements. The specific questions would depend on the circumstances and previous testimony. Again, this is exactly the same technique already used to prosecute other crimes where the defendant’s state of mind is germane. In reality, this would probably not happen because no competent defense attorney would allow their client to testify and commit a felony by telling an easily falsified lie under oath to defend against a lessor charge. Of course, if they do testify a person can always say “I identified as a man at that moment”, just like they can say “it was self defense” or “I didn’t mean to kill them”, but that doesn’t mean a judge or jury will buy it. Suppose that the Fox News article referenced in this posting also included the sentence “Upon arrest, the women stated “at that moment I identified as a man so what I did wasn’t illegal”. No one reading this blog would believe that statement. The arresting officer, prosecutor, judge and jury would probably not either. Perhaps this is why I have never heard of anyone lying about their transgender identity for any purpose, much less to avoid a criminal charge. Conversely, it was crystal clear to me that all of the few transgender people I have met personally were sincere in their transgender identity; they weren’t doing it for the copious benefits which society showers on transgender people.

    The implication of this post (and similar posts preceding it) seems to be that addressing people using their preferred pronoun and allowing them to behave consistently with their stated gender identity (the “transgender age”) somehow introduces unbearable burdens on individuals or society. In this case, the most I’m seeing is at most a very occasional need to use different (but still straightforward and well established) prosecution strategies. In the context of a law with dubious justification to begin with and more significant enforcement issues (i.e. it is not possible to reliably determine a person’s sex by observing their breasts so enforcement requires police officers to have x-ray vision), I must say, “as a practical matter”, so what.

  29. philg

    October 16, 2017 @ 12:47 pm

    29

    Neal: “Gender identity is a fundamental part of almost everyone’s personal identity.”

    How can this be true? http://gender.wikia.com/wiki/Agender says there are people who are “genderless”.

    http://gender.wikia.com/wiki/Gender_Fluid says “Gender fluid is a gender identity which refers to a gender which varies over time. A gender fluid person may at any time identify as male, female, neutrois, or any other non-binary identity, or some combination of identities. Their gender can also vary at random or vary in response to different circumstances. Gender fluid people may also identify as multigender, non-binary and/or transgender.”

    How can gender identity simultaneously be “a fundamental part of … identity” and also subject to change “at random”?

  30. Neal

    October 16, 2017 @ 12:49 pm

    30

    philg: Note the qualifier “almost everyone’s”.

  31. philg

    October 16, 2017 @ 12:55 pm

    31

    Neal: You’re saying that “almost everyone” is cisgender and therefore we can structure laws and society without considering the minority that is transgender? Where will California airports recycle their “all-gender” bathroom signs?

  32. Neal

    October 16, 2017 @ 1:04 pm

    32

    @philg: No, I am saying that a claim made in this posting and thread (i.e. addressing people using their preferred pronoun and allowing them to behave consistently with their stated gender identity somehow creates a foolproof defense against the subject law) is false.

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