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.

Most Popular

White House

Rachel Maddow’s Turnberry Tale

To a certain kind of Rachel Maddow viewer, there are few more titillating preludes to a news segment than the one she delivered Monday: “If you have not seen it yet, you are going to want to sit down.” Maddow’s story began, as many of her stories do, with President Trump, this time focused on his hotel ... Read More
White House

Politico Doubles Down on Fake Turnberry Scandal

It's tough to be an investigative reporter. Everybody who feeds you a tip has an axe to grind. Or, alternatively, you find yourself going, "I wonder if . . . ?" You put in your research, you talk to lots of people, you accumulate a huge pile of information, but you still haven't proved your hypothesis. A wise ... Read More

Thin the Herd Further, DNC

There’s an old joke often expressed well into banquets and conferences, where a speaker says, “We’re at the point where everything that needs to be said has been said, but not everyone has said it.” We’re already at that point with the Democratic primary debates. Tonight was a three-hour ordeal, and ... Read More