Bench Memos

Law & the Courts

Obama Administration’s Outrageous War on North Carolina—Part 4 (Single-Sex Facilities)

See Parts 1, 2, and 3

Title VII having been enacted in 1964, it’s been long established that an employer’s maintenance of separate bathroom and shower facilities for male and female employees does not discriminate on the basis of sex in violation of Title VII.* The Obama administration purports to respect the existence of single-sex facilities. What it objects to is the exclusion of “transgender employees” from the facilities that match their gender identities.

But the Obama administration’s utterly backwards understanding of what discrimination is, if embraced, would make it impossible to retain any system of single-sex facilities, including the system of transgender-modified single-sex facilities that it favors.

Let’s continue to assume, for the sake of argument, that Title VII’s ban on discrimination on the basis of sex includes a ban on discrimination on the basis of gender identity. If the Obama administration were correct that an employer must allow a male employee who thinks he’s a woman to use the women’s restrooms and showers, then it would indisputably be discrimination on the basis of gender identity for that employer to bar a male employee who knows he’s a man from using those same facilities. After all, the only difference between the two biological males is that they have different gender identities. How could one of the men be allowed to use the women’s facilities and the other be barred from doing so if Title VII bars discrimination on the basis of gender identity?

In short, the Obama administration’s unsound proposition that separate facilities assigned by biological sex involves discrimination on the basis of gender identity collapses into incoherence, as this transgender illogic would disallow any system of single-sex facilities to survive.

* To be sure, single-sex facilities by their very nature distinguish on the basis of sex. But that distinction has never been regarded as discrimination under Title VII (or other similar laws) for the obvious reason that the distinction reflects the fact that men and women are different and that separate facilities serve basic privacy and safety interests that arise from those differences.

Most Popular

U.S.

Baby Please Come Back, Says Andrew Cuomo

Then-mayor Mike Bloomberg famously described New York City in 2003 as a “luxury product,” and therefore priced accordingly. The price hasn’t changed, except to go up slightly — taxes, rents, everything. But few would argue that the product New York offers remains first-rate. The theaters are closed. The ... Read More
U.S.

Baby Please Come Back, Says Andrew Cuomo

Then-mayor Mike Bloomberg famously described New York City in 2003 as a “luxury product,” and therefore priced accordingly. The price hasn’t changed, except to go up slightly — taxes, rents, everything. But few would argue that the product New York offers remains first-rate. The theaters are closed. The ... Read More
The Economy

What’s an ‘American’ Car?

I’m not too sure about Dmitri’s ode to American cars, because I am not too sure what is an American car. In what sense should a Jeep Compass manufactured in Mexico be thought of as American while a Mercedes GLE made in Alabama isn’t? The answer cannot be corporate ownership: Both companies have ... Read More
The Economy

What’s an ‘American’ Car?

I’m not too sure about Dmitri’s ode to American cars, because I am not too sure what is an American car. In what sense should a Jeep Compass manufactured in Mexico be thought of as American while a Mercedes GLE made in Alabama isn’t? The answer cannot be corporate ownership: Both companies have ... Read More

William Tecumseh Sherman: A Warrior in Full

Statues of William Tecumseh Sherman stand throughout the country, including a striking gilded-bronze one by Augustus Saint-Gaudens outside Central Park in New York City. Reading a biography of Sherman in the context of the current spate of iconoclasm brings home how anyone looks immaculate on a pedestal, or to ... Read More

William Tecumseh Sherman: A Warrior in Full

Statues of William Tecumseh Sherman stand throughout the country, including a striking gilded-bronze one by Augustus Saint-Gaudens outside Central Park in New York City. Reading a biography of Sherman in the context of the current spate of iconoclasm brings home how anyone looks immaculate on a pedestal, or to ... Read More