by Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law, and affiliated faculty member in the IU Department of Gender Studies and the Kinsey Institute.
Why did the United States sue the governor and various state agencies of North Carolina?
As an employer, sponsor of public universities, and provider of federally funded public safety programs and services, North Carolina’s state government is obligated to comply with the non-discrimination requirements of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Act (“VAWA”). All of these federal civil rights laws prohibit discrimination on the basis of sex. VAWA also prohibits discrimination by federal grant recipients like North Carolina on the basis of gender identity.
North Carolina’s recently enacted H.B. 2 requires that multiple-occupancy bathrooms and changing facilities located in North Carolina public agencies “be designated for and only used by individuals … based on their biological sex.” “Biological sex” is defined as ““[t]he physical condition of being male or female, which is stated on a person’s birth certificate.”
On behalf of the United States, the Department of Justice (“DOJ”) alleges that this so-called “bathroom law,” as enforced against transgender persons, is illegal discrimination on the basis of sex. (Other provisions of H.B. 2, such as its preemption of Charlotte’s city ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, are not at issue in the suit.)
Why did North Carolina Governor McCrory sue the United States?
McCrory’s lawsuit asked for a declaratory judgment that North Carolina was not in violation of federal civil rights laws as the DOJ alleges. Essentially, it was a preemptive strike in the face of warnings by the DOJ. The legal questions in both suits are essentially the same.
Is discrimination against transgender persons really discrimination on the basis of “sex” as that term is used in federal civil rights laws?
The DOJ, federal agencies such as the Equal Employment Opportunity Commission and Department of Education, and a growing number of federal circuit and district courts have said the answer is yes. The EEOC has compiled a summary of court decisions here.
It is well established in federal law that, as used in Title VII, the term “sex” encompasses both sex – that is, the biological differences between men and women – and gender. The term “gender” refers to the cultural and social aspects associated with masculinity and femininity.
Gender identity discrimination is sex discrimination because it relies on stereotypes about how men and women should present themselves and conduct their lives. The U.S. Supreme Court has interpreted Title VII to prohibit such sex and gender stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). As the EEOC has explained, “Since Price Waterhouse, courts have widely recognized the availability of the sex stereotyping theory as a valid method of establishing discrimination ‘on the basis of sex’ in many scenarios involving individuals who act or appear in gender-nonconforming ways. And since Price Waterhouse, courts also have widely recognized the availability of the sex stereotyping theory as a valid method of establishing discrimination ‘on the basis of sex’ in scenarios involving transgender individuals.” Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012). See also Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (“A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”)
As Attorney General Loretta Lynch put it more colloquially, North Carolina’s law is discriminatory because it attempts to “legislat[e] identity” and it “insists that a person pretend to be something or someone they are not.”
The most recent federal circuit to hold that discrimination against transgender persons can be sex discrimination was the Fourth Circuit U.S. Court of Appeals, which covers North Carolina. In April 2016, the Fourth Circuit said that a lower court must give deference to the Department of Education’s interpretation of Title IX regulations, in which Department instructed that schools that provide sex-segregated bathrooms must treat transgender students consistent with their gender identity as opposed to their biological sex.
Does the DOJ’s position in this matter improperly usurp the role of Congress, as Governor McCrory charged?
No. Courts and federal agencies routinely are required to interpret and apply the meaning of terms in federal statutes. In this case, the DOJ’s interpretation is supported by almost twenty federal court decisions dating as far back as 1997. The federal government also routinely conditions funding to state and local governments on compliance with federal norms.
Is there any reasonable policy basis for North Carolina’s bathroom law?
No. The legislation is based largely on ignorance and crude stereotypes that have no basis in fact. The law also has no grounding in common sense. Under its provisions, an overtly feminine transgender woman like Caitlyn Jenner would be required to use a men’s room; a very masculine transgender man like body-builder Shawn Stinson would be required to use a women’s room.
As the DOJ complaint explains, “An individual’s ‘sex’ consists of multiple factors, which may not always be in alignment. Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female…. For individuals who have aspects of their sex that are not in alignment, the person’s gender identity is the primary factor in terms of establishing that person’s sex.” Gender transition is a serious and complex personal matter that entails a host of medical, psychological, and legal issues, and often involves diagnosis and clinically appropriate care by a physician. Accordingly, public policy related to gender identity and transgender status requires careful fact-finding, respectful consideration of interests on all sides, and sober, well-informed deliberation by lawmakers – none of which was evident in the hasty enactment of H.B. 2.
North Carolina’s “bathroom law” reduces transgender persons, in the eyes of state law, to little more than sexual deviants whose presence inherently invades the privacy of non-transgender persons. For example, Lieutenant Governor Dan Forest said the new law was necessary to prevent “pedophiles, sex offenders, and perverts” from having “free rein to watch women, boys, and girls undress and use the bathroom.”
Obviously, any form of assault or sexual misconduct in public bathrooms is already prohibited by criminal laws, and there are no documented examples of such problems being caused by transgender persons in North Carolina or elsewhere.
And so in short, North Carolina’s “bathroom law” is more than merely a solution in search of a problem. It is a quintessential example of a legislative enactment that was impelled by animus and a governmental desire to exploit ignorance about, and strike at the dignity of, a minority group.