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In other words, there’s no straight answer on whether North Carolina’s law violates federal civil rights laws. That’s because unlike other now-settled civil rights issues, the transgender rights debate is still in its infancy.
“We’ve had a civil war and two constitutional amendments dealing with race, and we’ve had nothing dealing with transgender rights,” said Greg Wallace, a law professor at Campbell University who doesn’t think the law violates civil rights.
Both sides are pulling out a litany of decades-old case law and regulations — many of which did not directly deal with transgender issues — to try to make their case. It gets really complicated really quickly, so we broke it down into four (hopefully) easy-to-understand arguments:
1. Is it illegal to discriminate against transgender people in schools?
Yes, even this basic question isn’t settled law. More specifically, both sides are debating whether Title IX of the 1972 Education Amendments Act — the federal law better known for prohibiting sex discrimination in schools and universities — includes protections for gender identity. Here’s what each side says.
The Department of Justice and the Department of Education have said on multiple occasions that laws prohibiting sex discrimination should be read to extend to transgender students.
“Treating a student adversely because the sex assigned to him at birth does not match his gender identity is literally discrimination ‘on the basis of sex,’ ” the Justice Department argued.
Most recently, it said a Chicago-area school district broke the law by banning a transgender student from the girls’ locker room. And of course, the government now says says North Carolina’s law is illegal. At least one federal court agrees; just last month, a Virginia federal appeals court ruled in favor of Virginia high school junior Gavin Grimm, saying he can sue his school board for discrimination because it banned him from the boys’ bathroom. In making its decision, the court cited the Department of Education’s interpretation of gender discrimination.
Those rulings have all come directly from the Obama administration, which is stretching the law further than it was meant to go, supporters of the bathroom law say. North Carolina’s lawsuit claims the federal government has made “a baseless and blatant overreach” in trying to void the state’s bathroom law.
Why? Because when Title IX was written, it explicitly said that having separate bathrooms and locker rooms for men and women is not discrimination. The way the Obama administration is reading the law, some observers think private health clubs and gyms might also have to open up their bathrooms to transgender people.
“The Justice Department is making law for the federal government as opposed to enforcing it,” McCrory told Fox News on Sunday.
Plus, nine federal judges in three circuit courts and two district courts have rejected arguments like the one the DOJ is making that it’s illegal to ban transgender students from bathrooms and locker rooms, Wallace said.
2. Is it illegal to discriminate against transgender people in the workplace?
North Carolina’s law also stopped cities from passing their own anti-discrimination ordinances to protect gay and transgender people, which opponents argue could have repercussions well beyond bathroom stalls. And they’re seizing on that to make another case for why North Carolina’s law is illegal. The Department of Justice said North Carolina is specifically violating Title VII of the 1964 Civil Rights Act in discriminating against transgender people.
In 1989, the Supreme Court ruled that you can’t fire someone for not acting like their gender — say, if a law firm fires a woman for acting too macho or fires a man for acting too feminine. It’s known as gender stereotyping, and the Supreme Court made clear it’s sex discrimination.
That case did not deal with transgender people, but opponents of bathroom laws say it’s easy to connect the dots today. Indeed, at least two federal courts already have, in ruling that civil rights laws could apply to a claim brought by a fired transgender woman who thought he or she was unfairly fired.
The law says no, it’s not (for now)
And once again, the case law on this is unclear. Older court cases say there are no laws written to explicitly protect transgender people from discrimination. If Congress wants a new law for to explicitly protect transgender people from discrimination at the workplace, in housing, in the pizza joint, in the bathroom, etc., it will have to write it. And that hasn’t happened yet.
3. Does allowing transgender people into bathrooms violate people’s privacy (and vice-versa)?
At its heart, North Carolina’s law is aimed at protecting privacy and how to balance people’s expectation of it with equality. Both sides say their privacy is violated in this bathroom debate, but for very different reasons.
Yes, opening up bathrooms violates people’s privacy
Lost in the furor over this law, say its supporters, is how NOT writing it would have allowed municipalities like Charlotte, N.C., to violate everyday Americans’ privacy.
“If transgender persons are given the legal right to use facilities of their choice, non-transgender persons will be required to disrobe, shower and perform personal bodily functions in the presence of those with intimate body parts different from their own,” Wallace wrote in an op-ed for North Carolina’s News & Observer. He argued that the law actually balances privacy rights by allowing schools and government offices to make reasonable accommodations for transgender people, like providing them with a single-use bathroom.
Plus, once again, case law on this is unclear. (Sensing a theme here?)
Yes, closing bathrooms to transgender people violates their privacy
When done correctly, laws allowing transgender people to use the bathroom of the gender they identify with shouldn’t even cause a ripple in people’s daily lives. Female students won’t even know they’re showering with a transgender female, for example, if that girl is treated like any other student, say LGBT advocates.
It’s when you start forcing transgender students to use a different bathroom that their privacy gets violated, they say. Transgender students will have to essentially out themselves by suddenly using a different bathroom. It would force them to share private medical information against their will and, perhaps more damaging, open themselves up to bullying and violence.
“These are not hypothetical abstract fears,” Tara Borelli, a lawyer with Lambda Legal who is involved in a lawsuit challenging the law, told The Fix recently, citing two clients in the lawsuit who say they were bullied for being forced to use a different restroom. Because they are so different, transgender people are some of the most vulnerable people in our society to bullying, violence, depression and suicide, say LGBT advocates.
4. What even is a transgender person?
This is by far the trickiest question to answer in this debate, but it could be a central one the courts address because proponents of North Carolina’s law are bringing this question up in their defense of it.
“It’s very hard to define transgender or gender identity,” McCrory has argued. He says Congress has not defined “sex” as something that can be chosen.
Who gets to define who’s a woman and who’s a man? Is it a personal decision? A certain number of years of hormone therapy? Gender-reassignment surgery? (North Carolina’s law says it’s what your birth certificate lists, which is possible but difficult to change.) Supporters of the North Carolina law say this ambiguity allows predators in disguise to easily slip through the cracks — and into a restroom.
Opponents of North Carolina’s law say McCrory and others are manufacturing fear on baseless claims — and they emphasize that transgender students are some of the most vulnerable students in America’s school system, not the other way around.
Correction: This post originally misidentified the law Title IX, which deals with sex discrimination in federal education funding, is from. It’s from the 1972 Education Amendments Act.