Bench Memos

Law & the Courts

Obama Administration’s Outrageous War on North Carolina—Part 3 (On ‘Discrimination’)

See Parts 1 and 2

Let’s now address Vanita Gupta’s central claim that H.B. 2 “is facially discriminatory against transgender employees on the basis of sex [read: gender identity] because it treats transgender employees, whose gender does not match their ‘biological sex,’ as defined by H.B. 2, differently from similarly situated non-transgender employees.”

(As faithful readers will recognize, this post is very similar to my Part 3 post on the Fourth Circuit’s recent Title IX transgender case.)

As I will show in this post, reserving women’s bathrooms, locker rooms, and shower facilities for biological females (and men’s bathrooms, locker rooms, and shower facilities for biological males) does not in fact involve any discrimination on the basis of gender identity. Rather, under the guise of nondiscrimination rhetoric, the Obama administration is pressing the substantive claim that gender identity trumps biological sex under Title VII—in other words, that employers must discriminate in favor of gender identity. That is a policy position that transgender advocates are welcome to push for in the legislative arena. But it is a baseless and absurd reading of Title VII.

For the sake of argument, I will assume here that Title VII’s ban on discrimination “because of … sex” includes a ban on discrimination “because of” (or, as Gupta puts it, “on the basis of”) gender identity.

A person discriminates on the basis of a trait when he takes that trait into account in his decisionmaking,* and he doesn’t discriminate when he disregards that trait. So, for example, an employer discriminates on the basis of race when he factors a job applicant’s race into his hiring decision, and he doesn’t discriminate on the basis of race when he disregards the applicant’s race in making his hiring decision. Similarly, an employer discriminates on the basis of gender identity when he factors a job applicant’s gender identity into his hiring decision, and he doesn’t discriminate on the basis of gender identity when he disregards the applicant’s gender identity in making his hiring decision.

But in the context of single-sex bathrooms, locker rooms, and shower facilities, the very same concept of discrimination on the basis of gender identity plays very differently from what transgender advocates contend. In this context, an employer complies with the norm of nondiscrimination on the basis of gender identity when he disregards the employee’s gender identity and instead assigns the employee to the facilities that correspond with the employee’s biological sex.

In other words, it is Gupta and the Obama administration, as well as other advocates of transgender access to bathrooms and showers, who, under the guise of their nondiscrimination rhetoric, are in fact seeking to discriminate on the basis of—in favor of—gender identity. That’s exactly what a policy of making gender identity override biological sex entails: It makes gender identity determine which restrooms and showers a person is allowed to use, just as a policy of race-segregated restrooms and showers makes race determine which facilities a person is allowed to use. (I am of course not asserting that racial discrimination and discrimination in favor of gender identity are moral equivalents.)

* Perhaps better stated: A person discriminates on the basis of a trait when he takes that trait into account in his decisionmaking when there is no compelling or inherent justification for doing so. Thus, for example, it’s not discrimination on the basis of sex to have research dollars for uterine cancer go entirely to research on female subjects. (There might be a broader claim that the allocation of research dollars for cancer research generally discriminates on the basis of sex, though the apples-to-apples comparison could become very difficult.) 

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