By Garrett Epps
First the American Civil Liberties Union and now the U.S. Justice Department have concluded that North Carolina’s bathroom bill, H.B.2, is illegal and probably unconstitutional as well. Most people of goodwill may instinctively feel the same way.
If pushed, most people would say, “It’s discriminatory.” That’s the answer my Con Law students often give about various hypothetical statutes. They’re always correct, and always wrong, because all laws are “discriminatory.” Driver’s-license laws and drinking laws discriminate on the basis of age, for example. Immigration law discriminates on the basis of birthplace and citizenship. Tax laws discriminate on residence, income level, home ownership, and occupation.
But if so, why is that true? The so-called “bathroom provisions” of the bill target transgender individuals. The Civil Rights Act doesn’t make any reference to trans people—it forbids discrimination in employment “because of … race, color, religion, sex, or national origin.”
Second, the defender would argue, look at the terms above: The statute does not forbid discrimination against transgender people—or, for that matter, against lesbians and gays. So even if H.B.2 does discriminate, it’s not forbidden discrimination. The legislature decided it had a reason for the discrimination—to keep supposed transgender rapists away from children—and so everything is fine.
The answer to the first argument is easy. Government discriminators have used the language of equality for a century and a half, as in the argument that Southern segregation was a system of “separate but equal.” But the Supreme Court has recognized, equality is more than words on a page; it is a practical concept, relating to the way people live. It can be violated in a million ways, and (as I remember from my segregated childhood) telling people what bathrooms they can and can’t use is at least potentially one of them.
The second argument remains: Nothing in the statute forbids discriminating on the basis of “being transgender.”
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