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.
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.”
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.
Yet when the decision was announced in March 1998, the vote was 9-0 for Oncale—and Scalia himself wrote the Court’s terse, somewhat grudging opinion. (Justice Clarence Thomas concurred separately.) “[N]othing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and the defendant … are of the same sex,” Scalia wrote. “[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” The text said, “because of sex,” and Oncale had stated a claim. Scalia was probably not happy about the result; but he insisted that statutory words meant what they said, and the statute said, “because of sex.”
The “bathroom” provision is about sex—“sex-based considerations”—and nothing else. The North Carolina law enacts a state definition of “physical sex” and makes the birth-certificate definition of sex binding on an individual. But trans people are people for whom the birth-certificate designation has proved to be erroneous. The weight of medical opinion supports them; to pretend, as the legislators did, that a trans individual’s gender identity is a subjective whim is at best ignorant—akin to climate denial—and at worst grossly dishonest. The assumption behind H.B.2 is that the state, and the state alone, is entitled to assign each of its residents a sex and require compliance with its will. But the premise of American law is that people are individuals. A just state cannot assign them a status—whether of race, caste, disability, or sexual identity—at birth and force them to live their lives in compliance with its estimation of who they are.
Thus the state is refusing trans employees and students access to facilities for their sex because of a state objection to the way in which that sex was determined. A birth certificate cannot control an individual’s later gender identity; to claim otherwise would be akin to refusing to allow persons born out of state to vote in North Carolina, on the grounds that their birth certificates show that they are residents of other states.
The idea that anti-trans discrimination is sex discrimination may seem novel. Even those charged with enforcing Title VII at one time rejected the idea. In 2013, Chai Feldblum—a former Georgetown Law professor who now serves on the federal Equal Employment Opportunity Commission—published in the Journal of Law in Society a concise history of this change. In 1974, she notes, the Commission dismissed a complaint by a trans woman. This was not a case of discrimination “because of sex,” the EEOC reasoned, but one of discrimination because of “having undergone a particular operation.” Since that time, lower courts and federal agencies have rejected that crabbed idea and have fashioned powerful case law demonstrating that LGBT people who are treated differently than their coworkers (or fellow students at a federally funded institution) are suffering discrimination “because of sex.”
The American understanding of human sexuality has now begun to embrace the full humanity of transgender people. That understanding will deepen as the law disarms the official hatred that seeks to drive them underground. It won’t take 40 years for society to see that the rationale of H.B.2 and other bathroom laws as farcical. All that’s needed are courts that take statutes seriously.