Case: 24-30399 Document: 182-1 Page: 1 Date Filed: 09/26/2024
`
`
`
`United States Court of Appeals
`
`for the
`Fifth Circuit
`
`Case No. 24-30399
`
`
`
`STATE OF LOUISIANA, by and through its Attorney General, Elizabeth B.
`Murrill; LOUISIANA DEPARTMENT OF EDUCATION; STATE OF
`MISSISSIPPI, by and through its Attorney General, Lynn Fitch; STATE OF
`MONTANA, by and through its Attorney General, Austin Knudsen; STATE OF
`IDAHO, by and through its Attorney General, Raul Labrador; SCHOOL BOARD
`OF WEBSTER PARISH; SCHOOL BOARD OF RED RIVER PARISH;
`SCHOOL BOARD OF BOSSIER PARISH; SCHOOL BOARD SABINE
`PARISH; SCHOOL BOARD OF GRANT PARISH; SCHOOL BOARD OF
`WEST CARROLL PARISH; SCHOOL BOARD OF CADDO PARISH;
`SCHOOL BOARD OF NATCHITOCHES PARISH; SCHOOL BOARD OF
`CALDWELL PARISH; SCHOOL BOARD OF ALLEN PARISH; SCHOOL
`BOARD LASALLE PARISH; SCHOOL BOARD JEFFERSON DAVIS
`PARISH; SCHOOL BOARD OF OUACHITA PARISH; SCHOOL BOARD OF
`FRANKLIN PARISH; SCHOOL BOARD OF ACADIA PARISH; SCHOOL
`BOARD OF DESOTO PARISH; SCHOOL BOARD OF ST. TAMMANY
`PARISH; ALL PLAINTIFFS,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES DEPARTMENT OF EDUCATION; MIGUEL CARDONA,
`in his official capacity as Secretary of Education; OFFICE FOR CIVIL RIGHTS,
`UNITED STATES DEPARTMENT OF EDUCATION; CATHERINE
`LHAMON, in her official capacity as the Assistant Secretary for Civil Rights;
`UNITED STATES DEPARTMENT OF JUSTICE; MERRICK B. GARLAND, in
`his official capacity as the Attorney General of the United States; KRISTEN
`CLARKE, in her official capacity as Assistant Attorney General for the Civil
`Rights Division of United States Department of Justice,
`
`Defendants-Appellants.
`
`––––––––––––––––––––––––––––––
`
`SCHOOL BOARD RAPIDES PARISH CONSOLIDATED,
`
`Plaintiff-Appellee,
`
`v.
`
`

`

`Case: 24-30399 Document: 182-1 Page: 2 Date Filed: 09/26/2024
`
`UNITED STATES DEPARTMENT OF EDUCATION; MIGUEL CARDONA,
`in his official capacity as Secretary of Education; OFFICE FOR CIVIL RIGHTS,
`UNITED STATES DEPARTMENT OF EDUCATION; CATHERINE
`LHAMON, in her official capacity as the Assistant Secretary for Civil Rights;
`UNITED STATES DEPARTMENT OF JUSTICE; MERRICK B. GARLAND, in
`his official capacity as the Attorney General of the United States; KRISTEN
`CLARKE, in her official capacity as Assistant Attorney General for the Civil
`Rights Division of United States Department of Justice,
`
`Defendants-Appellants.
`
`_____________________________
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE
`WESTERN DISTRICT OF LOUISIANA, MONROE IN CASE NOS. 3:24-CV-563
`AND 1:24-CV-567, HONORABLE TERRY A. DOUGHTY, CHIEF JUDGE
`
`
`
`
`
`
`
`
`
`
`
`BRIEF OF AMICUS CURIAE WOMENS LIBERATION
`FRONT IN SUPPORT OF PLAINTIFFS-APPELLEES
`
`
`
`LAUREN A. BONE
`WOMEN’S LIBERATION FRONT
`Attorneys for Defendant-Appellant
`1802 Vernon Street NW, Suite 2036
`Washington, DC 20009
`(202) 507-9475
`
`(800) 4-APPEAL • (130520)
`
`

`

`Case: 24-30399 Document: 182-1 Page: 3 Date Filed: 09/26/2024
`
`STATEMENT OF INTERESTED PERSONS
`FIFTH CIRCUIT RULE 29.2
`
`The undersigned counsel certifies that the following persons and entities
`
`have an interest in the outcome of this case. These representations are made in
`
`order that the judges of this court may evaluate possible disqualification or recusal.
`
`Lauren A. Bone, Legal Director of Women’s Liberation Front, Amicus Curiae. The
`
`undersigned counsel also certifies that Amici Curiae Women’s Liberation Front is a
`
`nonprofit corporation that has no parent corporation, is not a publicly held
`
`corporation, and does not issue stock.
`
`DATED: September 26, 2024 /s/ Lauren A. Bone
`
`Lauren A. Bone
` Legal Director for Women’s Liberation Front
`
`

`

`Case: 24-30399 Document: 182-1 Page: 4 Date Filed: 09/26/2024
`
`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
`
`amicus curiae states it is a non-profit 501(c)(3) organization. Amicus
`
`curiae has no corporate parent and is not owned in whole or in part by
`
`any publicly-held corporation.
`
`
`
`
`
`i
`
`

`

`Case: 24-30399 Document: 182-1 Page: 5 Date Filed: 09/26/2024
`
`TABLE OF CONTENTS
`
`Page
`
`CORPORATE DISCLOSURE STATEMENT ............................................ i
`
`TABLE OF AUTHORITIES ..................................................................... iv
`
`INTRODUCTION AND INTEREST OF AMICUS CURIAE ................... 1
`
`SUMMARY OF ARGUMENT ................................................................... 3
`
`ARGUMENT ............................................................................................. 4
`
`1.
`
`ALLOWING MALES TO IDENTIFY INTO FEMALE-
`ONLY SPACES CAUSES HARM TO WOMEN AND
`GIRLS ............................................................................................... 4
`
`A. Women and girls are vulnerable to physical and
`sexual violence perpetrated by males ..................................... 4
`
`B. Access to single-sex spaces mitigates the risk of
`violence and sexual predation to women and girls ................ 5
`
`C. Disparities between men and women in crime
`perpetration are based on biological sex, not “gender
`identity” ................................................................................... 8
`
`D. Self-identification policies allow males to opt-in to
`access female-only spaces at any time .................................. 13
`
`2. WOMEN AND GIRLS REPORT FEAR, ANXIETY, AND
`HUMILIATION OVER LOSS OF PRIVACY AND
`DIGNITY IN DIVERSE SETTINGS ............................................. 14
`
`A.
`
`School bathrooms, locker rooms, and housing ..................... 15
`
`B. Public bathrooms and changing rooms ................................. 17
`
`C. Women’s Prisons and Juvenile Justice Facilities................. 21
`
`D. Women’s Shelters .................................................................. 24
`
`3.
`
`ENCOUNTERS WITH MALES IN FEMALE-ONLY
`SPACES CAUSE MEASURABLE HARMS TO WOMEN
`AND GIRLS .................................................................................... 25
`
`ii
`
`

`

`Case: 24-30399 Document: 182-1 Page: 6 Date Filed: 09/26/2024
`
`A. Psychological Trauma ........................................................... 25
`
`B. Punishment and Retaliation ................................................. 30
`
`C. Loss of Access to Services ..................................................... 34
`
`CONCLUSION ........................................................................................ 37
`
`iii
`
`

`

`Case: 24-30399 Document: 182-1 Page: 7 Date Filed: 09/26/2024
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`
`Bostock v. Clayton County,
`590 U.S. 644 (2020) ................................................................................. 1
`
`Chandler et al. v. Macomber et al.
`(E.D.Cal. filed July 19, 2024) (No. 1:21-cv-01657-JLT-HBK) ...... passim
`
`Fortner v. Thomas,
`983 F.2d 1024 (11th Cir. 1993) ............................................................. 15
`
`McGee v. Poverello House,
`No. 118-CV-00768-LJO-SAB, 2019 WL 5596875 (E.D. Cal.
`Oct. 30, 2019) ........................................................................................ 24
`
`Students and Parents for Privacy et al. v. U.S. Dept of Ed. et al.,
`No. 1:16-cv-04945 (N.D. Ill, May 4, 2016) ............................................ 16
`
`Statutes & Other Authorities:
`
`Md. Code Ann. Crim. Law § 3-902(c)(1) .................................................. 14
`
`Andy Ngo, Wi Spa Suspect Still at Large, With History of
`Indecent Exposure and Masturbation, New York Post,
`September 17, 2021 .............................................................................. 19
`
`Belknap, J. (2020). The invisible woman: Gender, crime, and
`justice. SAGE Publications .................................................................. 4-5
`
`Bill Hanna, Transgender Bathroom Battle Smolders in Fort
`Worth Federal Prison, Fort Worth Star-Telegram
`(February 28, 2017) .............................................................................. 21
`
`Cecilia Dhejne et. al. Long-Term Follow-Up of Transsexual
`Persons Undergoing Sex Reassignment Surgery: Cohort Study
`in Sweden, PLOS One ............................................................................ 9
`
`Condom Purchases and Sexual Assault, results of 2021 Public
`Records Act ........................................................................................... 12
`
`Dept. of Educ., Transcript of Title IX Public Hearing (June 2021) ....... 15
`
`iv
`
`

`

`Case: 24-30399 Document: 182-1 Page: 8 Date Filed: 09/26/2024
`
`Emma Colton, 80-year-old Washington state woman banned
`from YMCA after demanding trans employee leave locker, New
`York Post. August 9, 2022 .................................................................... 20
`
`Emma Richter, Fury after five WV middle school students who
`protested a trans athlete's participation are banned from future
`competitions as state's AG fights for their freedom of speech,
`Dailymail.com (April 30, 2024) ............................................................ 33
`
`Evidence and Data on Trans Women’s Offending Rates, Evidence
`submitted to WEC by Professors Rosa Freedman, Kathleen
`Stock, and Alice Sullivan on Gender Recognition Act in the
`UK, available at
`https://committees.parliament.uk/writtenevidence/18973/pdf/ ........... 12
`
`Examination of Gender Diverse Offenders, Canada’s 2022
`Correctional Service Research Report ................................................. 11
`
`Federal Bureau of Prisons, Inmate Statistics: Offenses,
`https://www.bop.gov/about/statistics/statistics_inmate_offenses
`.jsp ......................................................................................................... 11
`
`Federal Bureau of Prisons, Transgender Inmate Report (August
`19, 2023), Posted on August 25, 2023 by “Keep Prisons Single
`Sex USA” on X (formerly Twitter) ........................................................ 10
`
`Genevieve Gluck, Wyoming Sorority Members Forced to Admit
`Trans-Identifying Male as Court Rejects Suit, Reduxx,
`August 28, 2023 .................................................................................... 16
`
`Gong Chen et al., A Comparative Study on Strength between
`American College Male and Female Students in Caucasian and
`Asian Populations, 21 SPORT SCIENCE REV. 153 (Aug. 2012) .......... 5
`
`Hearing on H.B. 183, (Ohio 2024) (Testimony of Janel Holloway
`and Angelina Drollinger) ...................................................................... 20
`
`Hearing on H.B. 183, (Ohio 2024) (Testimony of Kateisha
`Young) ................................................................................................... 21
`
`Incarcerated Woman Speaks Out on the Impact of SB 132,
`Women’s Liberation Front (July 6, 2021) .................................... passim
`
`v
`
`

`

`Case: 24-30399 Document: 182-1 Page: 9 Date Filed: 09/26/2024
`
`J.K. Canner, et al., Temporal Trends in Gender-Affirming
`Surgery Among Transgender Patients in the United States.
`JAMA Surg, 2018 Jul ............................................................................. 9
`
`J.L. Herman, B.D. Wilson, T. Becker. Demographic and Health
`Characteristics of Transgender Adults in California: Findings
`from the 2015-2016 California Health Interview Survey, UCLA
`Center for Health Policy Research, 2017 Oct ........................................ 9
`
`Joseph Brean, Forced to share a room with transgender woman
`in Toronto shelter, sex abuse victim files human rights
`complaint. National Post (August 2, 2018) .......................................... 32
`
`K.A. Chivers-Wilson, Sexual assault and posttraumatic stress
`disorder: a review of the biological, psychological and
`sociological factors and treatments. McGill journal of medicine:
`MJM : an international forum for the advancement of medical
`sciences by students, 9(2) (2006) ..................................................... 25-26
`
`Kelsey Bolar and Andrew Mew, Female student alleges she was
`raped in trans-inclusive bathroom at New Mexico middle
`school. The Post Millenial (June 20, 2023) .......................................... 17
`
`Kenneth J. Zucker, DSM-5: call for commentaries on gender
`dysphoria, sexual dysfunctions, and paraphilic disorders.
`Archives of sexual behavior. Vol. 42, Iss. 5 (2013) ............................... 13
`
`Klaudia van Emmerik, Concerns Over Transgender Client at
`Okanagan shelter, Global News (Mar. 9, 2017) ................................... 36
`
`Lee Brown, Women-only spa forced to allow trans customers with
`penises even though everyone is naked, New York Post,
`June 9, 2023 ..................................................................................... 17-18
`
`Letters from Incarcerated Women, Women’s Liberation Front,
`https://womensliberationfront.org/letters-from-incarcerated-
`women (last visited September 23, 2024) .................................. 8, 22, 28
`
`Lisa Fickenschier, Planet Fitness assigns staffer to assist
`transgender client in women’s locker room: ‘If you are
`uncomfortable, you can use a stall’, New York Post,
`March 22, 2024 ..................................................................................... 18
`
`vi
`
`

`

`Case: 24-30399 Document: 182-1 Page: 10 Date Filed: 09/26/2024
`
`NBC Washington, Man Dressed as Woman Arrested for Spying
`Into Mall Bathroom Stall, Police Say. November 18, 2015 ............ 18-19
`
`Number of Offenders Who Identify as Transgender, Intersex,
`or Non-Binary Housed in Male Facilities Seeking Transfer to
`Female Facilities And Percentage Who are Registered Sex
`Offenders or Convicted of a Sex Offense, California Dep’t of
`Corrections and Rehabilitation, Public Records Act request,
`dated Feb. 9, 2022 ................................................................................. 10
`
`Poll data, Women’s Liberation Front,
`https://womensliberationfront.org/poll-data .......................................... 8
`
`Protecting Men at the Women’s Shelter, Feminist Current
`(Sept. 13, 2020) ................................................................................. 7, 33
`
`S.E. Ullman, et al., Psychosocial Correlates of PTSD Symptom
`Severity in Sexual Assault Survivors, Journal of traumatic
`stress, 20(5) (2007) ................................................................................ 25
`
`Satoshi Kanazawa & Mary C. Stil, Why Men Commit Crimes
`(And Why They Desist), SOCIOLOGICAL THEORY, 434 (Nov.,
`2000) ........................................................................................................ 4
`
`Sorority Sisters Reveal Fear and Betrayal After Biological Male
`Pledge Allowed into Their Sorority, Megyn Kelly Show,
`May 15, 2023 ......................................................................................... 27
`
`Stephanie S. Covington, From Prison to Home: The Effect of
`Incarceration and Reentry on Children, Families, and
`Communities, Center for Gender & Justice. (December 2001) ........... 28
`
`U.S. Department of Justice, Bureau of Justice Statistics,
`Campus Climate Survey Validation Study Final Technical
`Report, January 2016 ........................................................................... 26
`
`Uniform crime reporting handbook: UCR. (2004-2019).
`Washington, D.C.: U.S. Dept. of Justice, Federal Bureau of
`Investigation. Retrieved from the Library of Congress ......................... 4
`
`Unisex Changing Rooms Put Women In Danger, The Sunday
`Times (Sept. 2, 2018) .............................................................................. 5
`
`vii
`
`

`

`Case: 24-30399 Document: 182-1 Page: 11 Date Filed: 09/26/2024
`
`Women and girls and their right to sanitation. October 3, 2011.
`Office of the High Commissioner of Human Rights .............................. 6
`
`Women lack access to private toilets around the world. Columbia
`University's Mailman School of Public Health. September 5,
`2018 ......................................................................................................... 6
`
`WSOCTV.com, Suspect arrested after going into women’s locker
`room, charged with indecent exposure, April 10, 2024 ........................ 19
`
`viii
`
`

`

`Case: 24-30399 Document: 182-1 Page: 12 Date Filed: 09/26/2024
`
`INTRODUCTION AND INTEREST OF AMICUS CURIAE1
`
`Amicus is the Women’s Liberation Front (“WoLF”), a non-profit
`
`feminist organization dedicated to the liberation of women by ending
`
`male violence, protecting women’s self-sovereignty, preserving woman-
`
`only spaces, and abolishing arbitrary and invidious sex discrimination.
`
`WoLF’s supporters include over 400 “sisters in action” who advocate for
`
`its mission and attend school, work in education, and live across the
`
`U.S., including many in the 5th Circuit.
`
`WoLF’s interest in this case stems from its interest in empowering
`
`and protecting the safety and privacy of women and girls afforded by
`
`single-sex spaces.2 The Department asks the Court to open up private
`
`spaces designated for women and girls and allow access to males who
`
`claim to identify as female. If the Court rules in its favor, it will strip
`
`the women in WoLF’s organization of their Constitutional rights to
`
`
`1 No counsel for any party authored any part of this brief, and no party,
`their counsel, or anyone other than WoLF, has made a monetary
`contribution intended to fund its preparation or submission, and
`counsel of record for all parties have consented to its filing.
`2 Amicus uses “sex” throughout the way the Supreme Court defined it in
`Bostock v. Clayton County, 590 U.S. 644 (2020) at 655: “physiological or
`biological distinctions between male and female.”
`
`1
`
`

`

`Case: 24-30399 Document: 182-1 Page: 13 Date Filed: 09/26/2024
`
`privacy; threaten their physical and psychological safety by proclaiming
`
`that women are not permitted to exclude males from any space or
`
`activity; and undercut the means by which women can achieve success.
`
`WoLF’s work centers around protecting women’s sex-based rights,
`
`making the protection of single-sex spaces paramount, whether in
`
`schools under Title IX, public accommodations, women’s shelters, and
`
`prisons. WoLF’s research and experience working with affected
`
`populations qualifies it to offer not just examples of how women and
`
`girls encounter males in single-sex spaces, but insight that the
`
`examples given are representative of the majority experience and
`
`perspective.
`
`WoLF urges the Court to affirm the lower court’s injunction,
`
`protecting the right of women to privacy, safety, and full exercise of
`
`their Constitutional rights to meaningfully participate in society.
`
`
`
`
`
`
`
`2
`
`

`

`Case: 24-30399 Document: 182-1 Page: 14 Date Filed: 09/26/2024
`
`SUMMARY OF ARGUMENT
`
`Single-sex intimate facilities exist and are protected by law both
`
`for privacy reasons and because women and girls are vulnerable to
`
`violence and sexual predation perpetrated by males, which is in no way
`
`lessened if a male self-identifies as female. Even if trans-identified
`
`males did pose a lower risk to women and girls, it is irrelevant in the
`
`face of policies that allow any male to claim a female gender identity
`
`and gain access to female-only spaces at any time. Encounters with
`
`males in ostensibly female-only intimate spaces, or even potential
`
`encounters, have numerous negative impacts on women and girls.
`
`Reports of personal experiences in a variety of contexts are backed up
`
`by a significant body of research explaining and articulating the
`
`negative psychological and emotional impacts of these experiences. This
`
`Court should understand that allowing the new Title IX Rule to go into
`
`effect now will naturally and necessarily impose these potentially
`
`traumatizing encounters on all women and girls affected by Title IX,
`
`causing irreparable harm.
`
`
`
`3
`
`

`

`Case: 24-30399 Document: 182-1 Page: 15 Date Filed: 09/26/2024
`
`ARGUMENT
`
`1. ALLOWING MALES TO IDENTIFY INTO FEMALE-ONLY
`
`SPACES CAUSES HARM TO WOMEN AND GIRLS.
`
`A. Women and girls are vulnerable to physical and sexual
`
`violence perpetrated by males.
`
`Women and girls are vulnerable to male violence. Nearly all
`
`murders, assaults, and rapes against women are committed by men.
`
`Satoshi Kanazawa & Mary C. Stil, Why Men Commit Crimes (And Why
`
`They Desist), SOCIOLOGICAL THEORY, 434 (Nov., 2000). Upwards of 85%
`
`of homicides in the U.S. are committed by males, and more than 95% of
`
`rapes are perpetrated by males. Uniform crime reporting handbook:
`
`UCR. (2004-2019). Washington, D.C.: U.S. Dept. of Justice, Federal
`
`Bureau of Investigation. Retrieved from the Library of Congress,
`
`https://ucr.fbi.gov/crime-in-the- u.s/2019/crime-in-the-u.s.-2019.
`
`The consequences of violence perpetrated by males and females
`
`also differ. Due to males’ greater average size and strength than that of
`
`females, females are more likely to be injured in physical conflicts.
`
`Belknap, J. (2020). The invisible woman: Gender, crime, and justice.
`
`4
`
`

`

`Case: 24-30399 Document: 182-1 Page: 16 Date Filed: 09/26/2024
`
`SAGE Publications. See also Gong Chen et al., A Comparative Study on
`
`Strength between American College Male and Female Students in
`
`Caucasian and Asian Populations, 21 SPORT SCIENCE REV. 153 (Aug.
`
`2012). And male-female assaults can have major consequences, as they
`
`may involve unwanted penile penetration and the threat of pregnancy.
`
`B. Access to single-sex spaces mitigates the risk of violence
`
`and sexual predation to women and girls.
`
`Equal opportunity for women and girls, which includes the ability
`
`to meaningfully participate in public life, sometimes requires single-sex
`
`provisions in recognition of the physiological differences between the
`
`sexes. Unisex Changing Rooms Put Women In Danger, The Sunday
`
`Times (Sept. 2, 2018), found at https://archive.ph/evO4g.
`
`An intimate facility includes anywhere that bodily privacy is
`
`expected, including bathrooms, locker rooms, and living quarters (both
`
`temporary and permanent). Women and girls need to be safe and to feel
`
`safe in order to fully take advantage of educational or employment
`
`opportunities, make use of public accommodations and medical services,
`
`and heal from the trauma of prior male violence.
`
`5
`
`

`

`Case: 24-30399 Document: 182-1 Page: 17 Date Filed: 09/26/2024
`
`Experts have acknowledged the necessity of sex-segregated
`
`facilities in ensuring safety and dignity for women and girls. The
`
`United Nations Office of the High Commissioner for Human Rights
`
`(OHCHR) stated that “women and girls have different physical needs
`
`from men” and a “greater need for privacy when using toilets and when
`
`bathing.” Women lack access to private toilets around the world.
`
`Columbia University's Mailman School of Public Health. September 5,
`
`2018, found at
`
`https://www.sciencedaily.com/releases/2018/09/180905140245.htm.
`
`Inaccessible toilets and bathrooms make women and girls more
`
`vulnerable to rape.” Women and girls and their right to sanitation.
`
`October 3, 2011. Office of the High Commissioner of Human Rights,
`
`found at https://www.ohchr.org/en/stories/2011/10/women-and-girls-
`
`and-their-right-sanitation. Women and girls also “have particular
`
`sanitation needs when they are menstruating” and experts say that
`
`access to public life is restricted without adequate access to private
`
`sanitation facilities. Id.
`
`In addition to bathrooms and locker rooms, sex-separated intimate
`
`spaces in prisons, jails, and women’s shelters across the country have
`
`6
`
`

`

`Case: 24-30399 Document: 182-1 Page: 18 Date Filed: 09/26/2024
`
`adopted policies that allow biological male inmates to self-identify as
`
`female and seek to be housed in women’s facilities. While ostensibly for
`
`the purpose of protecting males from predation in men’s facilities and
`
`shelters, there has been little to no safeguarding as far as women’s
`
`safety, privacy, and dignity.
`
`A woman working at a women’s crisis shelter in Maine reported:
`
`The shelter was originally conceived as an alternative to the city’s
`larger, mixed-sex shelter, where many women were too afraid to
`stay. Afraid of the rapes and assaults that took place at that
`shelter, and of the ease with which the abusive
`husband’s/boyfriends/pimps they had become homeless fleeing
`could track them down there, women were opting to sleep on the
`streets instead. And so a separate women-only shelter was
`established, to offer vulnerable women a safer refuge from men’s
`violence.
`
`Protecting Men at the Women’s Shelter, Feminist Current (Sept. 13,
`2020), found at https://www.feministcurrent.com/2020/09/13/protecting-
`men-at-the-womens-shelter/.
`
`The fact that intimate spaces by design lack visual oversight and
`
`prohibit recording - due to their very nature as private spaces - makes
`
`women and girls particularly vulnerable to predation if shared with
`
`males. One incarcerated woman in California sharing her living space
`
`and intimate facilities with males under the new “gender identity”
`
`policies, noted that there are “no cameras to record abusive activity.
`
`7
`
`

`

`Case: 24-30399 Document: 182-1 Page: 19 Date Filed: 09/26/2024
`
`Showering, using the toilet, changing clothes, and sleeping at night pose
`
`an unsafe environment for us.” Letters from Incarcerated Women,
`
`Women’s Liberation Front, https://womensliberationfront.org/letters-
`
`from-incarcerated-women (last visited September 23, 2024).
`
`The public agrees with the experts: support for single-sex spaces is
`
`not a fringe position. There is a significant agreement, both nationally
`
`and in red and blue states alike, that women and girls deserve single-
`
`sex intimate spaces. Poll data, Women’s Liberation Front,
`
`https://womensliberationfront.org/poll-data.
`
`Obviously, not every male will commit assault, murder, rape, or
`
`other sex offenses. The majority will not. The safety justification for
`
`female-only spaces is not because all men do these things - but rather
`
`because some men do.
`
`C. Disparities between men and women in crime
`
`perpetration are based on biological sex, not “gender identity”
`
`There is no objective justification for exempting males from these
`
`general statistics based on self-identification as female.
`
`8
`
`

`

`Case: 24-30399 Document: 182-1 Page: 20 Date Filed: 09/26/2024
`
`According to a high-quality longitudinal study, even men who
`
`have self-identified as women for decades and who have taken
`
`hormones and removed their genitals, statistically offend at a rate no
`
`different from the other males and significantly higher than the female
`
`population. Cecilia Dhejne et. al. Long-Term Follow-Up of Transsexual
`
`Persons Undergoing Sex Reassignment Surgery: Cohort Study in
`
`Sweden, PLOS One, available at
`
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3043071/. Also, the vast
`
`majority of males who identify as women retain their penises, which
`
`means rape and pregnancy are still possible threats. J.L. Herman, B.D.
`
`Wilson, T. Becker. Demographic and Health Characteristics of
`
`Transgender Adults in California: Findings from the 2015-2016
`
`California Health Interview Survey, UCLA Center for Health Policy
`
`Research. 2017 Oct, available at
`
`https://pubmed.ncbi.nlm.nih.gov/29091375/. See also J.K. Canner, et al.,
`
`Temporal Trends in Gender-Affirming Surgery Among Transgender
`
`Patients in the United States. JAMA Surg. 2018 Jul, available at
`
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5875299/.
`
`9
`
`

`

`Case: 24-30399 Document: 182-1 Page: 21 Date Filed: 09/26/2024
`
`Public records actually show that trans-identified males in prison
`
`are more likely to be convicted of sexual offenses than the general male
`
`prison population:
`
`● In California, 33.8% of biological male inmates seeking to transfer
`
`to women’s facilities are registered sex offenders. Number of
`
`Offenders Who Identify as Transgender, Intersex, or Non-Binary
`
`Housed in Male Facilities Seeking Transfer to Female Facilities
`
`And Percentage Who are Registered Sex Offenders or Convicted of
`
`a Sex Offense, California Dep’t of Corrections and Rehabilitation,
`
`Public Records Act request, dated Feb. 9, 2022, available at
`
`https://usa.kpssinfo.org/data-from-california-shows-that-1-3-of-
`
`the-men-seeking-to-transfer-to-womens-prison-are-registered-sex-
`
`offenders/.
`
`● In the federal prison system, 47.8% of male inmates identifying as
`
`women were serving time for sex offenses, compared to 6.86% of
`
`female inmates identifying as men. Federal Bureau of Prisons,
`
`Transgender Inmate Report (August 19, 2023). Posted on August
`
`25, 2023 by “Keep Prisons Single Sex USA” on X (formerly
`
`Twitter),
`
`10
`
`

`

`Case: 24-30399 Document: 182-1 Page: 22 Date Filed: 09/26/2024
`
`https://x.com/NoXY_USA/status/1695205078376845782?t=XFcek3
`
`rcOxiIf750Q8n30w&s=19. This compares to 12-13% of the general
`
`prison population (which includes both sexes). Federal Bureau of
`
`Prisons, Inmate Statistics: Offenses,
`
`https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp
`
`.
`
`● In Canada, 88% of trans-identifying male inmates have been
`
`convicted of a sexual offense. Additionally, 85% were convicted of a
`
`serious violent crime, and 58% of the victims were women or
`
`children. S. Farrell McDonald, et. al., Examination of Gender
`
`Diverse Offenders, Canada’s 2022 Correctional Service Research
`
`Report, summary available at
`
`https://www.canada.ca/content/dam/csc-
`
`scc/migration/005/008/092/005008-r442_O-
`
`en.pdf?utm_source=substack&utm_medium=email (examining
`
`data from 2017 to 2020).
`
`● In the UK, 58.9% of trans-identifying male inmates committed sex
`
`offenses, with 28% having committed rape and 18% attempted
`
`rape. Evidence and Data on Trans Women’s Offending Rates,
`
`11
`
`

`

`Case: 24-30399 Document: 182-1 Page: 23 Date Filed: 09/26/2024
`
`Evidence submitted to WEC by Professors Rosa Freedman,
`
`Kathleen Stock, and Alice Sullivan on Gender Recognition Act in
`
`the UK, available at
`
`https://committees.parliament.uk/writtenevidence/18973/pdf/.
`
`Policymakers know policies allowing males to access women’s
`
`private spaces are unsafe. In 2021, the California Department of
`
`Corrections and Rehabilitation (“CDCR”) requested additional staff to
`
`process an anticipated increase in sexual assault allegations under their
`
`new policy, noting that it “will result in the integration of different
`
`populations that have not previously been housed together.” First Am.
`
`Compl. for Declaratory and Injunctive Relief, Chandler et al. v.
`
`Macomber et al., (E.D.Cal. filed July 19, 2024) (No. 1:21-cv-01657-JLT-
`
`HBK), ECF 84. (hereinafter Chandler v. Macomber FAC). Those
`
`“different populations”, of course, are men and women. Individual
`
`prisons themselves have taken additional measures, such as purchasing
`
`stronger riot gear and pepper spray, and procuring condoms. Condom
`
`Purchases and Sexual Assault, results of 2021 Public Records Act
`
`request to CDCR, available at
`
`12
`
`

`

`Case: 24-30399 Document: 182-1 Page: 24 Date Filed: 09/26/2024
`
`https://womensliberationfront.org/news/condom-purchases-and-
`
`sexual-assault?rq=condoms.
`
`Sexual victimization takes forms beyond outright violence, such as
`
`exhibitionism and voyeurism, which are vanishingly rare among
`
`women. Kenneth J. Zucker, DSM-5: call for commentaries on gender
`
`dysphoria, sexual dysfunctions, and paraphilic disorders. Archives of
`
`sexual behavior. Vol. 42, Iss. 5, pp. 669 – 674 (2013).
`
`D. Self-identification policies allow males to opt-in to
`
`access female-only spaces at any time.
`
`That any male can justify his presence in any female-only space by
`
`saying “I identify as female” will not escape the notice of those who
`
`already harass, assault, and rape tens of thousands of women and girls
`
`every day, as well as those who would do so if given the opportunity.
`
`Allowing any male to claim that he has a right by law to be in
`
`women’s most intimate spaces undermines laws designed to protect
`
`women in these places. For example, in Maryland it is a crime “to
`
`conduct visual surveillance of . . . an individual in a private place
`
`without the consent of that individual,” defining a “private place” as “a
`
`13
`
`

`

`Case: 24-30399 Document: 182-1 Page: 25 Date Filed: 09/26/2024
`
`room in which a person can reasonably be expected to fully or partially
`
`disrobe and has a reasonable expectation of privacy.” Md. Code Ann.
`
`Crim. Law § 3-902(c)(1). If any male can assert that he has a legal