The Legal War Over North Carolina’s Bathrooms Takes A Bizarre New Twist

by ZACK FORD –

Transgender bathroom sign

A fifth federal lawsuit has been filed over North Carolina’s HB2, which requires public schools and offices to refuse transgender people access to facilities that match their gender identity. The suit expresses concern over the potential loss of Title IX funding for the state’s schools and universities, but with a bizarre twist: it does so by actually defending the discriminatory law.

The complaint was filed by “North Carolinians for Privacy,” a coalition of an unknown number of public school students, public university students, and their parents — none of whom is identified by name. It calls upon the courts to rule against the Department of Justice (DOJ) and Department of Education’s (DOE) interpretation that transgender people are protected from discrimination under Title IX so that North Carolina’s schools won’t lose funding for abiding by HB2. Perhaps uncoincidentally, it complements the suit filed Monday by Gov. Pat McCrory (R), which only addressed the DOJ’s concerns over HB2’s Title VII (employment) violations. The university system has not filed any suits of its own.

This lawsuit is identical in many ways to a suit on behalf of students and parents in Illinois’ District 211 last week, which is unsurprising because it was filed by the same conservative legal organization, the Alliance Defending Freedom (ADF). Like the Illinois suit, the North Carolina complaint insists that allowing transgender people into restrooms is a violation of privacy and safety, and it also explicitly admits that such objections are situated in the families’ religious beliefs that reject transgender identities.

But the North Carolina suit has several novel premises and may actually be one of the most significant legal attacks on transgender people ever filed.

ADF opens by claiming that the DOE’s guidance “forbids educational institutions from maintaining sex-specific restrooms and locker rooms.” This is a false statement. The Department’s regulations explicitly state that “separate toilet, locker room, and shower facilities on the basis of sex” are permissible.

What ADF is inherently doing, as is evident throughout the complaint, is rejecting the idea that gender identity is a component of sex. The reality that the two cannot be separated is actually the foundation of the Departments’ rules.

But this premise then props up ADF’s main claim: that the DOJ has instituted “an unmistakable ultimatum” to either prohibit sex-specific restrooms or lose federal funding, endangering all the students’ access to education. This coalition wants to have its cake (anti-transgender discrimination) and eat it too (keep federal funding), so it relies on fearmongering to insist upon both, proceeding to claim that trans protections will directly lead to increased sexual assaults. The ultimatum, it argues, is between losing funding and having a bunch of people get raped.

“The female University Students experience the added worry, anxiety, stress, and fear caused by the knowledge that allowing biological males the right of entry and use of restrooms and locker rooms designated for females places them at higher risk of sexual assault,” the suit claims, citing stats about how common rape is for college-age women and for those attending college in particular.

They make their fears crystal clear: “The female University Students are deeply concerned that male students whose gender identity matches their male biology might take advantage of such policies for nefarious and lewd purposes,” which would increase “the likelihood that they will be assaulted or otherwise victimized.”

Besides being an inaccurate understanding of gender identity, the claims still aren’t true. The Washington State Human Rights Commission elegantly explained how such conflicts would play out when the same claims were made there, pointing out that with nondiscrimination protections, anyone believed to be in the wrong place and can still be questioned and required to leave. Besides, transgender students usually seek out accommodations in advance of using them, either in consultation with parents and administrators in grade schools, or in consultation with residence life and student affairs administrators at universities. Thus, ADF’s nightmare of random bathroom invaders that can’t be stopped is wholly invented. Actual nefarious deeds like assault and voyeurism remain illegal regardless.

The suit differs from the Illinois suit in another important way. The DOJ has also accused North Carolina of violating the terms of the Violence Against Women Act (VAWA), which explicitly protects “gender identity” instead of relying on an interpretation of “sex.” ADF counters this by claiming to take the high road; it actually accuses the Departments of being the ones discriminating on the basis of gender identity.

Borrowing a backwards argument that’s been peddled recently by Ed Whelan of the Ethics and Public Policy Center, ADF contends that since bathrooms are divided by biology, granting access to transgender individuals will actually constitute discrimination on the basis of gender identity against non-transgender people. Respecting trans identities allows “some, but not all, biological males the right of entry and use of female restrooms and locker rooms,” the suit claims, whereas HB2 “treats all persons the same, regardless of their gender identity.”

This argument, like the others, rejects how gender identity and sex intersect. As the DOJ explained in its suit, “gender identity and transgender status are inextricably linked to one’s sex and are sex-related characteristics.” There are many components to “sex,” including hormones, genitalia, reproductive organs, chromosomes, and gender identity. When some of those components don’t align, gender identity — which itself has biological markers like sex differentiation of the brain — is the primary factor in establishing a person’s sex. Thus, by claiming to segregate by sex but then not respecting gender identities, HB2 burdens transgender people in a way it doesn’t burden cisgender people, which is a clear violation of the nondiscrimination protections in both VAWA and Title IX.

But after making those arguments, ADF turns around and rejects VAWA’s definition of gender identity outright, claiming that it only applies to gender stereotyping, but “does not contemplate situations where one does not perceive himself as being his biological sex.” Because VAWA cites the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act for its definition, ADF is essentially arguing that trans people aren’t even protected under federal hate crimes law. That definition is far broader than ADF claims, encompassing any “actual or perceived gender-related characteristics,” which would easily include transgender people. Protecting all LGBT people from hate crimes was, after all, one of the primary goals of that legislation.

ADF’s new arguments are no more compelling than others it has proffered elsewhere, and the odds are stacked further against them in North Carolina. The state falls under the jurisdiction of the Fourth Circuit, which just ruled last month that it would defer to the DOE’s interpretation of Title IX — that “a school must treat transgender students consistent with their gender identity.”

 

Reprinted with permission from Think Progress, a branch of The Center for American Progress