- The Washington Times - Wednesday, May 11, 2016

A question more commonly reserved for adolescent talks about the birds and the bees may very well decide the fate of the North Carolina bathroom law and similar laws around the nation: What is “sex”?

The U.S. Department of Justice is suing North Carolina over HB2, a law regulating public bathroom use on the basis of sex. The agency said the law illicitly discriminates against transgender people, who wish to use the facilities corresponding with their gender identification, which means not corresponding to their biological sex.

The lawsuit cites three federal antidiscrimination laws: Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of “sex” in employment; Title IX of the Education Amendments of 1972, which bars “sex” discrimination in education; and the Violence Against Women Reauthorization Act of 2013, which does bar “gender identity” discrimination in how certain federal funds are allocated, but also lists “sex” as a distinct category.

Vanita Gupta, head of the department’s Civil Rights Division, said HB2 violates both Title VII and Title IX, even though neither law mentions the phrase “gender identity.”

But Ms. Gupta said that because gender identity — the sense of oneself as male or female — is tangentially related to biological sex as determined by chromosomes and genitalia, prohibitions on “sex” discrimination also apply to “gender identity.”

“There is nothing radical or even particularly unusual about the notion that the word ‘sex’ includes the concept of gender,” Ms. Gupta said at a press conference this week. “Transgender people are discriminated against because their gender identity does not match the sex that they have been assigned at birth.

“Transgender men are men — they live, work and study as men,” she continued. “America protects the rights of all people to be who they are, to express their true selves and to live with dignity.”

Although the Justice Department has insisted “sex” is synonymous with “gender identity” for the purpose of antidiscrimination laws, that view puts them at odds with, among others, the gay rights movement.

Feminist and queer theory intellectuals usually insist that “gender identity” and “sex” are different — indeed, this is how it is possible to talk about a person with no uterus, Y chromosomes and, in many cases, a penis, as a “trans woman.”

When pro-gay and transgender activists push for antidiscrimination protection for their community, they argue that it is necessary despite already existing laws that have explicitly barred sex discrimination for decades.

That was the movement’s response to the North Carolina law which, in addition to regulating public bathroom access on the basis of sex, prevents local municipalities from passing antidiscrimination protections covering gender identity.

“This outrageous new law not only strips away the ability of local jurisdictions to protect LGBT people from discrimination, but it goes further and targets transgender students who deserve to be treated equally at school — not harassed and excluded,” said Human Rights Campaign President Chad Griffin in a press release after the law was enacted.

Although only 11 states have passed laws barring discrimination on the basis of gender identity — and the federal government has not — several courts have adopted the view that “sex” and “gender identity” are legally interchangeable.

Ms. Gupta pointed to a 4th U.S. Circuit Court of Appeals decision last month overturning a Virginia school board’s decision not to let a transgender teen use the locker room of the opposite sex — accommodating the student with a private changing room instead.

The Department of Education’s Office for Civil Rights has also interpreted Title IX as applying to gender identity. Without Congress passing any law, the agency in 2014 said federal law prohibits “discrimination based on gender identity” or “failure to conform to stereotypical notions of masculinity or femininity.”

Because of the recent nature of the controversy, Timothy F. Maloney, an attorney with Joseph Greenwald and Laake who specializes in civil rights matters, said there is very little precedent to guide courts taking up the case.

“I think the lawsuit plows new ground here,” Mr. Maloney said. “So where you stand on this probably depends on where you sit.”

But Travis Weber, who heads the Center for Religious Liberty at the Family Research Council, said the issue comes down to a simple matter of what words mean.

“I think all we need to do is ask whether the Congress enacting Title VII decades ago would have envisioned that this was what it had in mind,” Mr. Weber said. “And we know the answer is ‘no.’”

Mr. Weber said the 4th Circuit ruling relied on the 2014 Department of Education letter expanding the definition of “sex,” but questioned why the department’s interpretation of the law was prioritized over the words of the law itself.

He said the 4th Circuit ruling is “mooted, in my mind, by the fact that the statute should be interpreted by what the plain meanings of the words are in the statute.”

“They may have an agenda and want to push it, but the fact is the law is pretty clear, and the law does not support gender identity being included in sex discrimination prohibitions,” he said.

Mr. Maloney said he expects federal courts weighing in on the matter to vary drastically in their decisions, setting the stage for a Supreme Court ruling down the line.

In that regard, the final outcome could be determined by the presidential race, with the victor appointing a new justice to the Supreme Court and breaking a deadlocked bench. The next president could also prove decisive, Mr. Maloney said, by deciding to drop the Justice lawsuit once in office.

“I’m sure President Hillary Clinton would not drop it,” he said. “Who knows what President Donald Trump would do?”



Click to Read More

Click to Hide