North Carolina’s Governor Is Missing the Point in the Fight Over the State’s Anti-Trans Law

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Analysis LGBTQ

North Carolina’s Governor Is Missing the Point in the Fight Over the State’s Anti-Trans Law

Imani Gandy

If history is any indication, North Carolina very well may find itself on the losing end of this fight.

In what promises to be one of the most closely watched legal showdowns of the year, North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against one another on Monday, each asking a federal court to determine the legality of the anti-trans bathroom discrimination provisions in the state’s recently enacted HB 2.

HB 2 is the grossly discriminatory law that overturns local anti-discrimination laws, bans cities or counties from setting a minimum wage for private employers, and mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate. And even with the relative lack of legal precedent relating to trans people’s civil rights, if history is any indication, North Carolina very well may find itself on the losing end of this fight.

During a Monday press conference, U.S. Attorney General Loretta Lynch announced that the DOJ would be filing a lawsuit seeking a permanent injunction to block the bathroom discrimination provision of HB 2 and accused North Carolina of creating “state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security—a right taken for granted by most of us.”

Speaking directly to the transgender community, Lynch said, “[N]o matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”

Roe is gone. The chaos is just beginning.

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The DOJ had previously given North Carolina Gov. Pat McCrory (R) the opportunity to avoid the expense and hassle of defending a lawsuit against the United States. Principal Deputy Assistant Vanita Gupta gave McCrory an ultimatum in a letter last week: Confirm that the state of North Carolina would not “comply with or implement” HB 2, or risk a civil rights lawsuit and a curtailment of the nearly $861 million in federal funds North Carolina receives annually. Gupta gave the state until this last Monday to think about it and to notify employees that, consistent with federal law, they are permitted access to bathrooms and other facilities that align with their gender identity.

McCrory responded by filing an utterly pointless lawsuit. North Carolina could have easily saved itself the cost of filing, told the DOJ that it would move ahead with HB 2, and just waited to be slapped with a lawsuit. The cases are going to be consolidated anyway. But wasting taxpayer dollars in the persistent effort to oppress marginalized people seems to be a favorite tactic among states with nothing better to do.

Instead of confirming that he would stop the campaign against trans people, McCrory sued the Obama administration in federal court in North Carolina for its “radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered [sic] state employees.”

Title VII prohibits sex-based employment discrimination, among a number of other protections. According to the tortured analysis in McCrory’s complaint, the DOJ is “ignoring the bodily privacy” of state employees, particularly women and girls who, as a result of bathroom equality, could be vulnerable to assault by any sexual predator claiming to be a woman in order to gain easier access to their prey, despite the fact that there is not a single reported incident of a trans person assaulting anyone in a bathroom.

McCrory’s complaint cites a handful of cases out of the Seventh, Eighth, and Tenth Circuit Courts of Appeal, all of which stand for the proposition that Title VII doesn’t protect transgender people as transgender people per se, and that it doesn’t protect people with “sexual identity disorders.” And besides, McCrory argues, even if transgender employees are covered by Title VII, the statute doesn’t prohibit employers from balancing special circumstances they pose with “the right to bodily privacy held by non-transgender employees in the workplace.”

Even setting aside McCrory’s problematic intimation that transgender employees don’t have the same “right to bodily privacy” that cisgender employees do, McCrory’s complaint misses the point.

The issue is not discrimination against transgender people for being transgender people, but rather, as the DOJ pointed out in its letter to Gov. McCrory, the issue is that discrimination against transgender people is discrimination based upon sex, and discrimination based on sex is a violation of Title VII.

Citing the landmark decision Price Waterhouse v. Hopkins, in which the Supreme Court made it clear that discrimination on the basis of “sex” includes differential treatment based on any “sex-based consideration,” the DOJ noted that federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity.

In Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.

It makes sense that the same principle would apply to transgender people. Ann Hopkins was treated differently at work because she expressed her gender in a manner that did not conform to arbitrary societal standards. Similarly, transgender people who are prohibited from using the bathroom that conforms to their identity are being treated differently than cisgender people, because transgender people, as far as some of the courts are concerned, are not expressing their gender in a manner that parts of society deem suitable.

As the 11th Circuit noted in the 2011 case Glenn v. Brumby, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.”

If cisgender people can use facilities for people who share the biological gender with which they identify, then it is discriminatory to deny transgender people that same personal dignity. Full stop.

McCrory doesn’t seem to understand this and is stuck on the notion of “biological sex”: In his complaint, he protests that “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”

One can imagine making the same argument with respect to, say, racially segregated bathrooms: “All state employees are required to use the bathroom and changing facilities assigned to persons of their same race.”

And one hopes McCrory would agree that such an argument would fall flat on its face.

Ultimately, the fight between the United States and North Carolina is about more than just bathrooms. It’s also about conservative panic about the seeming cultural lawlessness of the Obama administration.

Conservative commentators are caterwauling that the Obama administration is rewriting Title VII and its sister act, Title IX of the United States Education Amendments of 1972—which prohibits discrimination in schools—to advance a transgender agenda. They complain that transgender people are not a protected class under Title VII or Title IX, and that extending the anti-discrimination protections found in those statutes to transgender people requires Congress’ stamp of approval.

Notably, McCrory’s complaint is silent on Title IX, presumably because the Fourth Circuit (which is where North Carolina sits) announced last month that it would defer to the Obama administration’s Title IX guidelines, which require schools that receive public funding to permit transgender students to use bathrooms consistent with their gender identity. The Obama administration reaffirmed this guidance in a letter to public schools on Friday.

The primary complaint of McCrory and his cronies is that the Obama administration is redefining “sex,” and that the new definition far exceeds anything that Congress could have contemplated when it enacted the twin statutes in 1964 and 1972. McCrory’s complaint about the “radical reinterpretation” of Title VII underscores that point.

But that’s not necessarily true. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for interpreting and enforcing Title VII under the Obama administration, isn’t redefining “sex” for purposes of the prohibition against sex discrimination in Title VII. Not really. Rather, the EEOC has given the term some context in light of Hopkins and similar cases, in which courts have recognized that sex discrimination includes gender stereotyping.

And the EEOC is well within its right to do so. In 1997’s Auer v. Robbins, the U.S. Supreme Court ruled that federal agencies are entitled to interpret their own regulations as they see fit, as long as their interpretation isn’t erroneous and doesn’t conflict with the plain language of the statute or regulation.

Assuming the North Carolina federal court follows the Auer rule, McCrory won’t have a legal leg to stand on.

McCrory will likely argue that Congress did not intend the term “sex” to mean anything other than “biological male” or “biological female.” But certainly the EEOC’s more expansive interpretation—that sex includes gender identity—is not contradicted by Title VII or by congressional intent. Indeed, the legislative history regarding Title VII is rather sparse because the prohibition against sex discrimination was a last-minute addition to its protections.

Title VII initially was conceived to prohibit racial discrimination in the workplace. Rep. Howard Smith (D-VA) introduced an amendment to add sex discrimination protections to Title VII a mere two days before the House of Representatives was scheduled to vote on it. Smith, who was a vocal opponent of civil rights for Black people, was considered a staunch supporter of women’s rights. (How he felt about Black women—or whether he even knew that they existed—is anyone’s guess.) So any discussion of congressional intent with respect to sex discrimination and Title VII is going to be short-lived.

An argument could certainly be made that Congress was not contemplating that “sex” would mean anything other than “male or female” and that it didn’t intend sex discrimination to encompass gender identity when it passed the statute, but if there’s nothing in the legislative history, then who can tell?

Besides, as a wise man once said, “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

That’s Justice Antonin Scalia writing the majority opinion in Oncale v. Sundowner Offshore Services, a case involving male-on-male sexual harassment. Scalia noted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”

Almost assuredly, neither was transgender bathroom access, but that doesn’t mean denying transgender people the dignity of using a bathroom aligned with their gender identity is not a “principal evil” prime for redress under Title VII.

After all, if it’s good enough for Scalia, it should be good enough for Gov. McCrory.