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.

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