Today’s question is whether an unclothed penis should be allowed in girls’ locker rooms, at least when attached to the living body of someone who grew up male.

That’s one way to formulate an issue presented in a federal lawsuit filed in Georgia in mid-March by 16 elite female college athletes. They are suing the National Collegiate Athletic Association (NCAA), Georgia Tech, and others to nullify the results of a swimming competition held at the university in 2022 and to bar transgender women from competing on NCAA women’s teams.

Their major claim, the one that has garnered most of the headlines, is that the NCAA has inequitably altered the terms of engagement in women’s sports by redefining a single word — “sex.” Under its participation rules, the NCAA requires colleges to accept on women’s teams students transitioning to female identities, even if anatomically these competitors remain biologically male.

The plaintiffs say that allowing transgender persons formed by male hormones and muscular structure to compete in a field from which cisgender men are excluded stacks the deck against even the most exceptional female competitors. Not only unfairly but also unlawfully: the plaintiffs allege that requiring schools to base eligibility on gender rather than biological sex violates Title IX, a federal law barring sex discrimination in any federally-funded school or education program, including athletics.

The suit, Gaines v. NCAA, stems from University of Pennsylvania swimmer Lia Thomas’s 2022 Division I championship in the 500-yard freestyle competition. (Twelve of the plaintiffs are swimmers; the other four represent track and field, tennis, and volleyball competitors.) Until beginning her transition, Thomas competed from 2017 to 2020 on Penn’s men’s team under the name Will Thomas. In 2022, after meeting NCAA hormone replacement therapy requirements, she joined Penn’s women’s team as Lia Thomas.

The plaintiffs seek a sweeping remedy. They want to bar transgender women from women’s teams,  expunge transgender records, and assign transgender medals and victories to their biologically female teammates.

Various hurdles stand in the way of a swift or obvious outcome. For one thing, it is not certain that the NCAA is directly subject to Title IX provisions. Whether the facts asserted give courts jurisdiction to try the case by class action procedures will likely be contested. But mainly, and, as perhaps some readers will find surprising, the courts have not yet definitively ruled on whether the word “sex” in Title IX refers only to biology—and, not incidentally, whether excluding transgender women from women’s teams means ultimately discriminating against them, also on the basis of sex.

But I’m going to skip all that and focus on the action in this case out of the water—the potential for offense in the form of emotional distress arising from access to women’s locker rooms.

The plaintiffs say that this is not merely a theoretical possibility (if it were only that, the plaintiffs might lack standing to proceed) but that it has actually happened—that Lia Thomas, still anatomically male, has been fully undressed in the women’s locker rooms in front of female swimmers, similarly ungarbed. In “permitting men to compete on women’s teams,” the complaint declares, they have

destroy[ed] female safe spaces in women’s locker rooms by authorizing naked men possessing full male genitalia to disrobe in front of non-consenting college women and creating situations in which unwilling female college athletes unwittingly or reluctantly expose their naked or partially clad bodies to males, subjecting women to a loss of their constitutional right to bodily privacy.

The complaint is not simply that the swimmers are momentarily disrobed or subject to being naked in a passing glance. Swim suits used in competitions—”tech suits”—are skin-tight. Suiting up is a struggle. The plaintiffs say that “almost all swimming and diving athletes require at least 15-20 minutes” to suit up, and “it is not uncommon for it take 30 or 40 minutes” to wriggle into one, all the while exposing themselves, wholly “undressed or partially clad.”

In effect, the plaintiffs are saying, the rules as presently applied permit a small group to colonize the locker room. That is, to impose upon the vast majority of competitors a set of conditions that subject them to serious emotional distress.

The plaintiffs also accuse the NCAA of attempting, as part of the colonizing strategy, to minimize campus disagreement over its rules by censoring speech. The rules formally impose various consequences on athletes who engage in “homophobic and transphobic behaviors.” The complaint alleges that the NCAA includes within these terms “offending language.” The plaintiffs say that on many campuses “merely standing up for fairness in women’s sports will be labeled ‘transphobic’” and that the NCAA is well aware of how its language is being interpreted. The system as a whole, the plaintiffs conclude, amounts to a speech code with hefty sanctions against college athletes who transgress it, even those who merely speak out on the psychological or political issues.

These allegations bring the case squarely within the central topic of Taking-Offense: the drive to regulate, control, and minimize offensiveness in contemporary society. Although the cases and controversies that have drawn most of my attention stem from objections to speech and expressive conduct, at its core this lawsuit rests on the same underlying concern: whether we ought to offer relief and redress to those who suffer from emotional distress in being exposed to sights, speech, or acts that appear to upset, demean, disparage, or discriminate against them.

In its simplest terms, the outcome might seem to turn on the answer to this question: Do we have a constitutional right to what has been variously labeled “bodily privacy” or “bodily modesty”? Why is this the question? Wouldn’t it be enough to point to laws on the books that guarantee such privacy? Yes—except that as far as I can find, there are practically none. Public lewdness statutes and other such laws are almost all aimed at prohibiting would-be nudists from parading around in public spaces. That’s not what’s at stake here. The statute books are essentially silent when individuals are forced to disrobe in private spaces.

Consider the following hypothetical case. Your local school board has taken on the task of modernizing its junior high school curriculum. In updating the “birds and bees” course on human sexuality, it authorizes teachers to require students in mixed-sex classes to fully disrobe, in order to make clear, in anatomical terms, what all the fuss is about. Parents object. The state education commissioner approves the board’s policy. “Get over your prudishness,” she says. Despite heavy lobbying to kill the policy , the state legislature takes no action. Notwithstanding the age of the students (they are presumably more vulnerable to distress than the college-age students in Gaines) or the nature of the activity (more overtly sexual), I find no constitutional precedent standing in this hypothetical school board’s way.

Is it surprising that there are no statutes protecting a general right “not to be seen naked”? Not really. This appears to be one of those rare situations in which a social consensus has been so strongly adhered to over the years that until very recently it would never have occurred to anyone to press the legislature to supplement the widely observed cultural norm. In her very recent book, On Sex and Gender (published in May), sensibly examining in detail the social and legal problems that have arisen in the wake of new thinking about these issues, Duke University Law School professor Doriane Lambelet Coleman, a one-time U.S. national collegiate champion in the women’s 800-meter indoor track competition, does not, on this particular point, get beyond a plaintive cry:

the notion that an institution in this day and age would tell females that there’s something wrong with them, if they don’t consent to being exposed to male genitals in a female space is just wrong. (p. 246)

Why bother looking for rights, if we all recognize that it’s just so wrong? The answer should be plain: the consensus is cracking. Without statutory deterrence, students can protect themselves from “forced nudity” only by pointing to a constitutional right to bodily privacy. Such a right has been recognized only sporadically.

The few reported cases offer a mixed picture. Some courts have acknowledged the long historical practice of separating the sexes in certain communal spaces and affirmed a right to bodily modesty (though not necessarily characterized by that phrase). Others do not.

But significantly, the cases and the claims about rights, are exceedingly context- and fact-specific. Forced disrobing in a prison is different from a requirement that could lead to unconsented nudity in a school. The same action—for instance, a forced strip search when in custody—may be perfectly lawful under one set of conditions (a security or safety check) and perfectly unlawful under another. For example, a court has held that the First Amendment’s religious exercise clause guarantees a prisoner a right not to be strip searched when his religion (in this case, Islam) precludes being seen naked by someone of the opposite sex, including a guard who was a transgender man (or, as the court put it, “a woman who identifies as a man”). In other words, the courts have never found a general right to bodily privacy that outweighs all other factors, as there was once a right to an abortion in the first trimester or as there is a right to express your opinion on politics of the day or to be free from compulsion to testify against yourself at trial.

The cases are not limited to prison settings. For example, a federal court in New York has held that a woman’s privacy right was violated when a state trooper surreptitiously filmed her undressing before participating in the videotaping of a staged crime scene to be used in recruiting trooper candidates. Other venues include sidewalks, beaches, generally recognized communal spaces, and even private homes (this very year a woman in Florida is suing a local police department for ejecting her from her home naked during the execution of search warrants). The result will also turn on the degree of disrobing required or encountered. There’s an obvious difference between bathrooms that do and do not have stalls.

Nor are these the only variables. The outcome of a particular case will depend heavily on its procedural posture. Judges will weigh evidence and claims differently in cases squarely presenting a claimed harm on the merits and cases in which plaintiffs seek a preliminary injunction or prison guards or supervisors claim qualified immunity.

How else explain these contrasting statements from different offices of the American Civil Liberties Union commenting on cases involving the specific issues at stake in Gaines v. NCAA? In a case in which parents sought but failed to obtain a preliminary injunction against their daughters’ having to share locker space with trans women, the Illinois chapter of the ACLU said

Throughout this litigation, one thing remains clear. The groups who filed this case remain unable to demonstrate any harm to their clients [parents on behalf of daughters] resulting from sharing restrooms and locker rooms with students who they perceive as different. The plaintiffs’ fear-mongering and persistent refusal to respect the core gender of these students cannot change the simple fact that there is no legal justification for requiring District 211 to separate and stigmatize transgender students because of who they are.

It is unclear, because unaddressed in these comments, whether this robust defense of trans women in female locker rooms took into account the potential embarrassment of being naked in front of people they perceive as biological males.

In a different context, this one in prisons, staff attorneys at the ACLU’s Women’s Rights Project explicitly address and acknowledge just such a purported harm:

Being forced to strip naked or expose oneself to others would traumatize anyone.

Case outcomes will also turn on the strength of the interests at stake. Even if the courts were to recognize a right to bodily privacy, the constitutional doctrine of “strict scrutiny” permits even a “fundamental right” to be overridden if the government has a “compelling interest” to do so and has “narrowly tailored” the law to achieve its purpose.

In 2018, in a case seeking a preliminary injunction barring transgender public high school students from using locker rooms of their gender sex, the U.S. Court of Appeals for the Third Circuit (headquartered in Philadelphia) ruled that parents of protesting students “are unlikely to succeed in establishing a violation of their right to privacy based on a transgender student potentially viewing them in a state of undress in a locker room or restroom. The challenged policy is narrowly tailored to serve a compelling governmental interest.” (Note, though, the word “potentially”: a court might be willing to recognize a right to privacy if there had been an actual viewing but not when exposure is merely a hypothetical possibility.)

Still another reason the pronouncements and judgments of the courts sometimes seem at odds is that the legal premises underlying the cases are inconsistent with the redress sought. If your complaint is that you are suffering embarrassment from a violation of bodily modesty, you are unlikely to take comfort from a court’s denying you relief on the grounds that putting you in such a situation does not amount to sexual harassment or discrimination. Those are different issues. In many of these cases, the locker room plaintiffs are invoking a substantive due process claim, but the courts seem to be trying the cases under an equal protection theory. Due process and equal protection are different constitutional doctrines that provide different forms of relief—the former calls on courts to ban the activity altogether; the latter limits the courts to assessing whether the conduct complained of treats similarly situated groups equally and, if not, to order the defendants to stop discriminating.

It’s a little like being told, when seeking relief from being punched by schoolyard bullies, that the school authorities won’t step in because the bullies strike everyone equally. (All right, I agree it’s a loose analogy.)

How has this all come to pass? A major source of the dispute, and the confusions surrounding it, trace to disagreement over the meaning of “sex,” the operative term in both Title IX and in previous cases dealing with distinctions between male and female. The plaintiff-athletes insist that the groups to which the equality criterion applies must be distinguished by reference to “biological sex,” a physical state involving chromosomes, hormones, and cellular structures that develop in utero. At birth these are fixed as male or female. The institutional defendants and transgender athletes assert, rather, that “sex” means “gender identity,” which is a matter of individual psychology and social expectations that can be altered.

For all the sputtering that the meaning of the word should be obvious, it’s an unsettled question which variant was intended or can be fairly inferred from laws that point simply to “sex” as the distinguishing factor for eligibility. There can be no reasoned solution that does not address the issue. Otherwise, the courts and parties are just talking around each other, on both the fairness and the privacy claims, pretending that the answer to these questions can be found in an existing consensus about constitutional rights. But there is no consensus. The issue is new and only now being vigorously debated.

I do not see a universal, general solution, a single rule that will answer all the sorts of bodily modesty cases that are yet to come. The likely resolution will be, as it so far has been, context-specific. But the controversy won’t be resolved, in any of its contexts, by courts’ begging the question, as some appear to do, slighting complaints of compulsory nudity as mere “inconvenience” or resulting in “slight discomfort” or by their assuming away the emotional distress suffered by transgendered persons who are singled out as undeserving of a legitimate place of comfort amid hostile surroundings.

Finding a fair solution may also be made more difficult by an underlying twist in the social predilections and political sentiments in play. Both right- and left-leaning disputants are faced with internal contradictions in their own general outlooks.

A right-wing approach to constitutional interpretation denies that substantive rights can be found in the vaporous phrase “due process of law.” At the extreme end of conservative constitutionalism, due process provides only procedural rights. It’s a thesis significantly involved in toppling Roe v. Wade, the constitutional poster child for the right to privacy. But it’s also the likely take of those with rightward leaning sentiments that the sexes have a right not to have their bodies exposed to each other by command of government. Where to locate such a right in the Constitution? Until the Supreme Court decides to be honestly originalist by giving the Ninth Amendment its legal due (you should look it up), you’d have to decide maybe there’s something to substantive due process rights after all.

At the other extreme, left-leaning “progressives,” who generally support transgender causes, have spent years seeking ways to blunt or deter the emotional distress felt by those who are the butt of offensive commentary. Many of the posts in this blog detail those claims and efforts. Oughtn’t the same impulse to diminish suffering cover the emotional distress that befalls those whose bodily modesty is invaded?

Only one thing is certain: there can be no peace in the matter, no ultimate resolution, unless the courts weigh the disputants’ claims on the same playing field. Judges face the unenviable task of working through who deserves constitutional relief from the emotional distress that new technologies and sensitivities have stirred up: biological females who complain of embarrassment (trauma?) at being on display or trans women who suffer emotional distress (humiliation? depression?) at being kept from sanctuaries to which they believe their gender identity entitles them?

I don’t have the answer, but I do know that the courts won’t begin to formulate it if they continue to duck the issues. Here’s a suggestion: Convene the next such judicial hearing in a locker room—in the buff. Make everyone stand. Take judicial notice of the body language. Invite school board members and local legislators to observe, in the same state of undress, to be excused on a pledge to vote funds for appropriate stalls. Then dress and reconvene and take up the really hard problem: weighing the claim that there can be no line-drawing within a gendered space, even when the entire point is to draw a line between the sexes in athletic competitions.

 

Thanks to Alivia Cooney, New York Law School Class of 2025, for research assistance.