Anti-Trans Discrimination Is Sex Discrimination

May 6, 2016

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.

But why?

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.

In order to invalidate a law, a challenger must show that the law engages in discrimination that is forbidden, either by the Constitution itself or by a valid statute. That’s the position the Justice Department took Wednesday in its letters to North Carolina state officials. H.B.2, they say, violates Title VII, the employment-discrimination section of the Civil Rights Act of 1964.

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.”

A defender of the bill would argue, first, that it doesn’t discriminate against anyone—it only requires bathrooms at a state office or school “to be designated for and only used by persons based on their biological sex,” which is defined as “the physical condition of being male or female, which is stated on a person’s birth certificate.” All men, as the state defines the term, must use the men’s room, and all women, as the state defines the term, must use the women’s room—the essence of equality.

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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3 comments on “Anti-Trans Discrimination Is Sex Discrimination

  • @OP – A defender of the bill would argue, first, that it doesn’t discriminate against anyone—it only requires bathrooms at a state office or school “to be designated for and only used by persons based on their biological sex,” which is defined as “the physical condition of being male or female, which is stated on a person’s birth certificate.”

    This is simply a flawed semantic definition which fails to recognise the biological range of sexuality!

    All men, as the state defines the term, must use the men’s room, and all women, as the state defines the term, must use the women’s room—

    And all transgender individuals will be forced by a flawed semantic definition, to use rooms which could be very inappropriate.

    the essence of equality.

    Nope! Omitting to make provision for a section of the population and legislating to force them to use inappropriate facilities because of the bigoted ignorance of legislators, is NOT “equality”.

    Separate facilities, or unisex wash-rooms as provided for the disabled, would be “equal provision”!
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  • “The Civil Rights Act doesn’t make any reference to…” might mean that it is OK in the eyes of the law, but it also means that the Act is out of date.

    The easiest solution, as briefly mentioned by the esteemed Alan4discussion above, is do away with the antiquated and sometimes annoying idea of separate bathrooms. Stalls are private anyway; mingling while washing your hands shouldn’t be a problem.
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  • I found this photograph absolutely compelling. This is what would happen if this law was brought into force. I commend the article to the readers. A transgender child with male genitalia that is female in reality, will be forced to walk into the men’s bathroom looking like this.

    http://www.attn.com/stories/7794/corey-maison-trans-girl-meme-sparks-debate-bathroom-bills

    This religiously inspired stupidity is about as uncivilized as human being can get in 2016.
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