New gender-identity discrimination law raises big questions

The Oregon Legislature made some changes to discrimination law that I believe could create a potential hazard for Oregon businesses, even acting without deliberate malice toward any person. Now, I’m not an attorney and would not presume to give legal advice to anyone, but I think it would be instructive to take a few moments to review the changes in law with regard to gender-identity discrimination. Regardless of how you feel about the law itself, or about the sexual orientation as a general issue, there are some parts to the law that could make you revisit some of the public accommodations you make as part of normal business activity, to protect yourself against lawsuits which may erupt from these rewritten statutes. Of course, I would certainly recommend getting your attorney’s advice before acting on my reading of the new statutes.

First, let me explain that I have edited the citations of law below, in order to to focus on the sexual orientation provisions. Where you see an ellipsis, or bracketed insertions, you are seeing my edits. I have tried to maintain the context with regard to sexual orientation, but you can read the complete versions of each statute at http://www.leg.state.or.us/07orlaws/sess0100.dir/0100.htm

Now, here is the vulnerability I see, in a nutshell: in protecting the status of self-determined gender identity, the Oregon legislature has created a channel through which conflicts between patrons of your public business can strike at you directly. Let’s agree to the obvious: there are some people who will be offended by those who choose to identify themselves, by dress or actions, with a gender they were not born to. Let us also agree that there are some people who will provoke that offense. Now, consider this scenario: a person is using their gender-assigned restroom in your business, and encounters a person who is not born to that same gender. Some in that position will be unaffected, but others will consider it a significant invasion of privacy, and will blame you for it. You, as the business owner, are specifically enjoined from demanding that any person use either one restroom or another, because that is a discriminatory act under the protection of public accomodation. The result: one patron may sue you for failure to protect them from the invasion, while the other may sue for discrimination in public accommodation. As far as I can tell, there is no statutory provision protecting the business from such privacy-issue lawsuits.

I see only one restful solution: conversion to single-occupancy restroom facilities, thus granting privacy to those who would be offended, and public accommodation to those whose gender choices are now a matter of protection. Perhaps that should figure into your next remodelling or construction project, as a matter of prudence.

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Posted by at 06:00 | Posted in Measure 37 | 22 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Jerry

    What about those of us who are offended at nonsense laws like these passed by nonsense legislators?
    What is our recourse?
    Does the Capitol have gender neutral restrooms? I didn’t think so…complete idiots these.

  • Alan

    Single occupancy restrooms would be a high expense for business. I dont think the politicians thought this one out.

  • Sybella

    Is there any law that says a business must provide public restrooms?? I’m not aware of any.

    Sorry Jerry, they don’t care if we’re offended or not. Got to admit though it could be interesting. Just think of the possibilities. I’m so glad we don’t have a public restroom.

  • Jerry

    I think I will wait until some female legislators go to the restroom in the Capitol, and then go in with them. I will explain my confusion with my sexuality, and there should be no problem!!

  • Patrick

    Apparently Oregon is not the only state implementing or trying to implement these types of rules for “sexual orientation”. See this column: https://www.townhall.com/columnists/MikeSAdams/2008/01/08/sometimes_you_feel_like_a_nut,_sometimes_you_don%E2%80%99t?page=2

    as well as the related: https://www.notmyshower.net/

    The author raises some very valid points.

    As far as the idea of moving or converting to single occupancy restrooms, this idea faces some significant obstacles. The number of required toilet and/or urinal facilities is determined by the occupancy type and maximum number of occupants allowed for the particular facility as calculated through the building code. One or two single occupancy restrooms are possible for small places of business such as you see in Starbucks, small eateries, etc. However, when you get to larger office building or particularly public buildings (think the Rose Garden during half time) the required numbers can become quite large. While it is possible to create a large number of individual restrooms, this becomes very costly and consumes a large amount of floor area, especially when you start to throw in things like the required space needed to meet ADA accessibility requirements.

    No, with a few exceptions we are all born to a specific sex. Restrooms need to remain marked as “Men” & “Women” and the user needs to figure out which he or she is prior to entering.

    • carol

      In a movie house not too far from my home, the owner/manager,(?) has over a period of years gone from a man with polished , manicured fingernails to a svelte lady with very buxom cleavage, seemingly all hers. Now I couldn’t care less what her preferences are, or who she wants to be, but given my knowledge of her history, and my age, I am not so sure that I could share a restroom with her comfortably.

  • Keno

    The elected annointed get to go home saying they did something when in truth they made things worse. The other people to benefit are lawyers. The person left picking up the peices is the customer and businesses who never know what is coming down the road next.

    That says it right there.

    • dean

      Haven’t any of you ever watched Ally McBeal? Lighten up.

  • Jerry

    We are not going to lighten up. These idiots who want to encourage every kind of depravation and force it on the rest of us need to be called to task for their incessant and unwarranted meddling. They are idiots and buffoons.
    I assume you have no problem, then, if your wife goes to the restroom somewhere and there are five men in the restroom with her – all with sex identity issues?? If so, what kind of husband are you???
    It really isn’t that funny.
    And no, we don’t watch stupid shows with washed up actors with eating disorders.

    • carol

      Jerry, our fearless gladiator, dashes forth to start a fight—he needs his solitude
      Armed with words, he slashes left, and left again, then whirls to face the right—-he has an attitude
      He’s armor-plated, his breath is baited, his enemy’s in sight—-behold the masses
      The poor and hungry, the old and weary, he’s ready now to fight—-their sorry asses
      And when he’s won, with words he’s spun, words he freakin’ knows are right—–he’s victorious
      Laptop closed he needs no more prose, or poems that sound so right——he’s feeling glorious
      He’s standing there, without a care, feeling weary to the bone—his heart is still
      He’s screaming now, we hear his vow, JUST LEAVE ME THE HELL ALONE!!—–I’m sure they will

  • Jerry

    Thanks Carol. Very nicely done!!

    • carol

      You’re welcome, Jerry, the pleasure was mine. This is the most gracious that i’ve seen you. Is the other Jerry a performance?

  • Jerry

    I am simply a nice person – always – you just have to get to know me.

    • dean

      Jerry…5 transgender “men” in a female restroom my wife walks into? Sounds like a setup for a joke. But seriously, what are the odds? And if it did happen, I trust she could handle the situation just fine.

      But let’s put the high heeled pump on the other foot. Would YOU be comfortable if 5 transgender men dressed to die for were in the males only restroom and you walked in? I actually did have an experience like this once and wished they had used the other restroom.

      Carol…when are we going to schedule a poetry slam with you and Jerry as the headliners?

      • carol

        I’m game. Shall I use you and the Dude as subjects? I could have a ball with that one. I could even set the scene in a trans-gender rest-room.

        • dean

          Forget I ever mentioned the idea.

          • carol

            I’ve had extensive dealings with fowl during my farming years. I can spot a chicken when I see one. Even if he’s wearing rooster feathers.
            Too bad, I had good one going in my teeny-tiny brain.

          • dean

            Cluck cluck.

  • carol

    Oughta do it anyway. You and the C’Dude, would make quite a soliloquy. Oh well, I’ll mull it over. I couldn’t resist with Jerry, he responds so nicely. Just hope that my powers of resistance have grown.

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