Bench Memos

Law & the Courts

Obama Administration’s Outrageous War on North Carolina—Part 7 (Contra Garrett Epps)

See Parts 1, 2, 3, 4, 5, and 6

In an Atlantic essay, liberal legal journalist Garrett Epps tries to defend the proposition that North Carolina’s H.B. 2 violates Title VII’s ban on sex discrimination. I’ll briefly explain here why his effort fails. (I’ll leave alone his broader embrace of the transgender dogmas that any effort to reserve girls’ bathrooms and showers for girls reflects “hatred” and that “trans people are people for whom the birth-certificate designation has proved to be erroneous,” but I would submit that it’s those dogmas that are steering him off the road.)

1. Epps’s major argument is that a ban on discrimination on the basis of sex necessarily includes a ban on discrimination on the basis of gender identity. He bases his argument on a very expansive reading of Justice Scalia’s 1998 opinion for the Court in Oncale v. Sundowner Offshore Services, which held that sexual harassment claims cognizable under Title VII extend to same-sex harassment claims.

Epps would seem to have you believe that Scalia and Oncale stand for the proposition that Title VII covers any discrimination based on “sex-based considerations.” But that phrase comes not from Oncale but from a plurality (not majority) opinion in Price Waterhouse v. Hopkins (1989), from which Scalia dissented.

Over a period of decades—both before and after Oncale and Price Waterhouseevery federal courts of appeals that has addressed the question has ruled that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination. In other words, the courts have not adopted Epps’s very expansive reading of Oncale.

That, of course, doesn’t mean that the courts won’t end up adopting that very expansive reading. But it does mean, contrary to what Epps suggests, that the Obama administration is being very aggressive in using a novel theory as the basis for threatening North Carolina.

2. In my explanation why DOJ is wrong to contend that H.B. 2 violates Title VII, I have nonetheless assumed for the sake of argument that Title VII bars discrimination on the basis of gender identity and I have shown that H.B. 2 does not discriminate on that basis (and that DOJ’s position does).

Epps states that “equality is more than words on a page; it is a practical concept, relating to the way people live.” I won’t disagree with his proposition, stated at that level of vapidity. But the fact of the matter is that DOJ contends that H.B. 2 is “facially discriminatory against transgender employees,” so that contention does indeed focus attention on “words on a page.” And the words of H.B. 2 do not discriminate on the basis of gender identity.

Epps further observes, drawing on his “segregated childhood” (he’s white, by the way), that “telling people what bathrooms they can and can’t use is at least potentially one” way to discriminate. Indeed, it is. But Epps has things backwards. As I wrote in my Part 3 post:

[I]t is [DOJ official Vanita] 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.

3. Like the Obama administration, Epps seems not to recognize (as I explain in Part 4) that his theory that H.B. 2 discriminates on the basis of gender identity would mean an end to any system of single-sex facilities, including the system of transgender-modified single-sex facilities that he favors. In other words, his position collapses into incoherence.

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