One of the markers of irrepressible liberalism is how it came to realize it doesn’t need to change the Constitution or the positive law to get what it wants. Remember the fuss over the Equal Rights Amendment back in the 1970s? Is there anything feminists have wanted that they haven’t been able to get by legislation or litigation in the absence of the ERA? Hard to think of anything.
One of the parade of imaginary horribles that opponents of the ERA threw at it back then was that it could lead to . . . integrated bathrooms! Nonsense, said the ERA’s advocates. It would never do anything that crazy. Among the persons saying this prospect was a fantasy was. . . Ruth Bader Ginsberg, writing in the Washington Post in 1975 (great catch by Eugene Volokh on this story):
Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.
Here’s a scan of the original article from Eugene. Nowadays, as we learned today from the Obama Justice Department, the Civil Rights Act of 1964 and Title IX require that bathrooms be open to whatever being you decide you want to be. No new legislation required!
Eugene offers the proper coda:
But for now, I do think it’s worth noting that, when sex equality rules were championed in the 1970s, now-Justice Ginsburg — one of the most prominent feminist lawyers of her era — rejected as “emphatically” unsound the argument that those rules might lead to males being allowed to use women’s restrooms.