Bench Memos

Law & the Courts

Obama Administration’s Outrageous War on North Carolina—Part 1 (The Basics)

Yesterday, Vanita Gupta, the principal deputy assistant attorney general in the U.S. Department of Justice’s Civil Rights Division, sent a letter to North Carolina governor Pat McCrory in which she presented the Department’s utterly ill-founded claim that North Carolina’s implementation of its recently enacted H.B. 2 would place it in violation of Title VII of the Civil Rights Act of 1964. Ms. Gupta has oh-so-graciously given Governor McCrory until the end of the day on Monday to inform her whether he will surrender to DOJ’s threat.

In a series of posts, I will show that Gupta’s threat is a lawless assault that, if it succeeds, portends dramatic consequences nationwide.

Let’s start by getting the basics straight:

1. H.B. 2 provides that “single-sex multiple occupancy bathroom and changing facilities [e.g., locker rooms and shower rooms]” in public schools and government agencies shall be “designated for and only used by persons based on their biological sex.” At the same time, as an accommodation to individuals who have a gender identity that differs from their biological sex, H.B. 2 allows schools and agencies to provide single-occupancy bathrooms and changing facilities.

In short, in public schools and government buildings, men’s or boys’ bathrooms, locker rooms, and showers that are “multiple occupancy” are reserved for biological males, and women’s or girls’ bathrooms, locker rooms, and showers that are “multiple occupancy” are reserved for biological females.

But, wait: Isn’t that exactly the state of affairs that nearly everyone has understood to exist throughout the country both before and since the enactment of Title VII in 1964? Yes, it is.

Let me add a couple of additional points of clarification. (For more, read this “Myth vs. Facts” document issued by the North Carolina government.)

H.B. 2 defines “biological sex” as the “physical condition of being male or female, which is stated on a person’s birth certificate.” If a person undergoes a surgical so-called “sex change,” North Carolina law enables that person to change the sex listed on his birth certificate.

H.B. 2 does not speak at all to how private businesses set up their multiple-occupancy restrooms, locker rooms, and showers. So if, say, a private gym wants to allow men who think they’re women to use the women’s locker rooms, it is free to do so.

2. Title VII states, in relevant part, that no employer shall “discriminate against any individual with respect to his … terms [or] conditions … of employment, because of such individual’s race, color, religion, sex, or national origin.” (Emphasis added.)

3. Gupta’s core claim in her letter is twofold: first, that Title VII’s bar on discrimination based on sex includes a bar on discrimination based on gender identity; and second, 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 I will show (largely repeating my refutation of the Obama administration’s similar claim under Title IX), the second part of Gupta’s claim has things entirely backwards. Assigning facilities on the basis of biological sex does not discriminate at all on the basis of gender identity. Instead, it is Gupta and the Obama administration who seek to compel North Carolina to discriminate “because of”—in favor of—gender identity. Their claim not only misconceives what discrimination is; it also collapses into incoherence.

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