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.”
To understand why the bathroom bill violates Title VII, I turn to an eminent figure in the history of civil-rights law, Justice Antonin Scalia. In 1991, the Supreme Court decided Oncale v. Sundowner Offshore Services, Inc.—a Title VII lawsuit brought by a former roustabout—a married man with children who happened to be on the small side—on an all-male oil-rig crew working in the Gulf of Mexico. For reasons that aren’t entirely clear, in the prison-like isolation of the platform, Joseph Oncale’s workmates harassed him by repeatedly holding him down and threatening to rape him. On one occasion, he alleged, they pushed a bar of soap up his anus. He quit his job and sued the company for tolerating “sexual harassment.” The company said the statute did not apply. Men could harass men, they argued, but that wasn’t sexual harassment. The Fifth Circuit agreed, holding that same-sex harassment could never be harassment “because of sex.”
Oncale took his case to the Supreme Court in December 1997. He cited an earlier case holding that Title VII was violated not because a plaintiff was a man or a woman but because “the employer relied upon sex-based considerations” in making employment decisions. The sexual nature of the threats and assaults, he said, meant that the harassment was “because of sex.” At oral argument, however, Scalia was aggressively skeptical of Oncale’s claim. The plaintiff’s workmates, Scalia suggested, “just didn’t like this guy.” Later (apparently on the assumption that there must be something about Oncale’s sexuality that provoked the violence), Scalia said, “I don’t know why singling him out on the basis of his sexuality means that you’re singling him out on the basis of his sex.” The company’s lawyer gladly agreed, arguing that Congress could not have intended the statute to cover “the entire gam[ut] of sexuality.” Congress had recently refused to pass a statute against sexual-orientation discrimination; thus, he added, Title VII could not encompass anything that might suggest a bar on anti-gay discrimination.