Let’s Talk About Privacy Rights

It was bound to happen sooner or later. The Republican lawmakers’ obsession with bathrooms has made its way to Minnesota. Senators Scott Newman, Dan Hall, Dave Thompson, Michelle Benson, and Paul Gazelka introduced a bill to mandate discrimination against transgender individuals:

Republicans in the Minnesota Senate introduced a bill on Friday that would block businesses and other employers from providing gender-neutral restrooms or from enacting policies that allow transgender employees to use appropriate restrooms. Senate File 3002 amends the 1993 Minnesota Human Rights Act — the nation’s first nondiscrimination law to include gender identity.

The bill starts with a specious definition of “sex.” It states, “A person’s sex is either male or female as biologically defined.” The bill does not mention people who fall outside the male-female binary such as those who are intersex, nor those whose sex designations have been legally changed under Minnesota law.

Why do these particular lawmakers feel qualified to define sex? Hell if I know. They probably believe democracy carries some kind of magical power that grants otherwise unremarkable individuals divine knowledge. Either way, their delusions of grandeur are only one absurdity amongst many in this case. Another absurdity is the justification given in the bill for its existence:

No claim of nontraditional identity or “sexual orientation” may override another person’s right of privacy based on biological sex in such facilities as restrooms, locker rooms, dressing rooms, and other similar places, which shall remain reserved for males or females as they are biologically defined.

Emphasis mine. Let’s discuss what a right to privacy is. A right, as it pertains to legal matters, is something that cannot be prohibited by the government. When somebody says you have a right to free speech they mean the government cannot prohibit you from saying something. When somebody says you have a right to a jury trail they mean the government cannot bar you from having a jury trail when it has accused you of a crime. When somebody says you have a right to privacy they mean the government cannot violate your privacy.

A right to privacy in a restroom, lock room, dressing room, or other similar facility means the government cannot surveil you in those facilities. That’s it. Since this bill has nothing to do with government surveillance in these facilities it also as no business arguing that its preserving a right to privacy.

In fact this bill would be a violation of privacy rights. How can a bill restricting what bathrooms transgender individuals can use be enforced? First, the enforcers have to identify transgender individuals. That would require looking through every individuals’ medical records. Second, the enforcers must surveil bathrooms so it can catch anybody violating the restriction. Since victimless violations of the law such at this one have no injured parties the only way to enforce them is through surveillance. That necessarily requires the government to violate everybody’s privacy.