An Inherent Conflict?

Is it possible to enforce both laws that prohibit discrimination on the basis of “gender identity” and also criminal laws against voyeurism and indecent exposure?

February 20, 2024

I have been thinking about the potential conflict between laws that prohibit discrimination on the basis of “gender identity” in places of public accommodation and criminal laws that prohibit voyeurism and indecent exposure at least since 2021, when a man named Darren Merager decided to parade his naked body (complete with erection) around the women’s section of Wi Spa, a Korean-style nude spa in Los Angeles.

A video of a woman named Cubana Angel complaining about the incident went viral. In the video, she is seen asking staff: 

I just want to be clear with you: It’s okay … for a man to go into the women’s section … He’s a man … HE IS A MAN … He’s not no female. 

The staff member refers to a law and Cubana Angel replies:

Really? What law?

The law the staff member was referring to is California Civil Code § 51, also known as the Unruh Act. That law, among other things, prohibits discrimination in places of public accommodation (like spas, bathrooms, locker rooms, etc.) on the basis of sex. Section (e)(5) of the Act states that sex includes, but is not limited to:

a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

If anyone can figure out what on earth any of that means, please let me know and I’ll give you a medal. I’ve been trying to figure out what any of it could possibly have to do with the material reality of sex for several years now, and I haven’t got a clue.

Merager claims to be a woman, and is legally considered as such. He had his driver’s license changed to state that he is female. He fully acknowledges that he has a completely intact male body, but California law permits this. This is how Merager described himself during a 2022 conversation with L.A. Magazine: 

I’m very neutral, like non-binary, although I don’t like that word. I’m legally female. But I have facial hair. I have a penis. I have no breasts. I don’t have a feminine voice. I don’t wear makeup or dress up like a female… [T]echnically, for legal terms, I am she/her. I put ‘female’ on my driver’s license. But I’ve had to struggle my whole life fitting into traditional society.

He described changing his sex on his driver’s license in January 2019, when the California Gender Recognition Act took effect, saying, “Anybody could walk in and get one.” He was right. The California Gender Recognition Act of 2017 allows anyone to simply mark female, male, or non-binary on a driver’s license. The law was authored by state Senate Democrats Toni Atkins and Scott Wiener, signed by Democratic governor Gavin Newsom, and went into effect in January 2019, just as Merager said.

Presumably, it was on the basis of California’s public accommodations statute that he was permitted to enter the women’s section of the nude spa on the basis of his female “gender identity.”

Merager was charged with indecent exposure in September 2021 and as of February 2023, he was still facing five counts. I have been unable to find any more recent information about the case.

But how does that work? If California public accommodations law permits him to be in the women’s section of the nude spa with an erection, how can the state prosecute him for indecent exposure? If he was legally permitted to be there, what’s the basis for the charge?

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