Bench Memos

Law & the Courts

Ruth Bader Ginsburg Defends North Carolina Law

Title VII of the Civil Rights Act of 1964 prohibits employers from (among other things) “discriminat[ing] against any individual with respect to his … terms [or] conditions … of employment, because of such individual’s … sex.” So-called Title IX, enacted in 1972, provides generally that no person “shall, on the basis of sex, be … subjected to discrimination under any education program or activity receiving Federal financial assistance.”

These laws, in short, make it unlawful for a broad range of employers, colleges and schools to discriminate on the basis of sex. They make no exception for restrooms or showers. So how is it, the mind besotted by modern confusions about “discrimination” might wonder, that it’s been long accepted that employers and schools may have single-sex restrooms and showers?

The obvious answer is that a system of single-sex restrooms and showers doesn’t discriminate on the basis of sex but instead recognizes and accommodates the legitimate privacy concerns that arise from the basic biological differences between the sexes. This is an elementary point that everyone used to recognize—yes, even Ruth Bader Ginsburg, who wrote in 1975 that single-sex restrooms were entirely compatible with a norm of nondiscrimination on the basis of sex:

Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.

(H/t Eugene Volokh.)

To be sure, individuals who identify as transgender have privacy interests that merit reasonable accommodation as well (such as the single-unit facilities that the Obama administration and transgender ideologues reject). But it’s impossible to graft onto an existing system of single-sex restrooms and showers a uniform right of “transgender” individuals to the facilities “consistent with their gender identity” without trampling on the privacy interests of other individuals. And it’s absurd to claim that Title VII and Title IX somehow require this trampling.

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