Bench Memos

Law & the Courts

Obama Transgender Ideologues Imprison Themselves

I’ve already explained in detail much of the illogic and incoherence that pervade the Obama administration’s claims that reserving single-sex restrooms and showers on the basis of biological sex violates Title VII and Title IX. The Obama administration also claims that North Carolina’s H.B. 2 discriminates on the basis of sex in violation of the federal Violence Against Women Reauthorization Act of 2013, and that VAWA claim is defective for the same reasons.

Plus, the Department of Justice’s reckless ideologues are now at war with themselves.

In her VAWA letter, Vanita Gupta, principal deputy in the Civil Rights Division, tells Frank L. Perry, head of North Carolina’s Department of Public Safety (DPS), that VAWA requires that “transgender individuals” be allowed to “access restrooms and changing facilities that are consistent with their gender identity in buildings controlled or managed by DPS or its sub-recipients.” The buildings controlled or managed by DPS include North Carolina’s prisons.

But DOJ has issued prison regulations, applicable to state prisons, that firmly reject any bright-line treatment of “transgender individuals” according to their gender identity. Indeed, on the very question whether to put a man who thinks he’s female (or a woman who thinks she’s male) in a men’s prison or a women’s prison, “the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.” Ditto for all “other housing and programming assignments,” which clearly include the assignment of shower facilities. Indeed, while generally prohibiting the practice, the regulations even leave open the possibility that “transgender” prisoners could be housed in “dedicated facilities, units, or wings solely on the basis of” their transgender status.

In short, DOJ’s prison regulations contradict DOJ’s unsound claim that reserving single-sex restrooms and showers on the basis of biological sex is unlawful discrimination under VAWA.

 

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