Last Wednesday, the United States Department of Justice warned North Carolina that a provision of its sweeping new anti-LGBTQ law—which bars trans people from using the bathroom that aligns with their gender identity in any government building—violates federal civil rights law. The DOJ asked the state to confirm that it will not enforce the blatantly discriminatory provisions of its recently enacted measure, known as HB2. Instead, North Carolina responded on Monday by suing the DOJ, asserting its right under federal law to exclude trans people from their preferred bathroom.
Some of this is erroneous; some of it is mendacious. Let’s separate the two. First, the DOJ’s claim—that gender identity discrimination is encompassed in a ban on sex discrimination—is only a “radical reinterpretation” of Title VII if you ignore Price Waterhouse v. Hopkins, a Supreme Court decision from 1989. Price Waterhouse involved an employment discrimination lawsuit by a butch, masculine female employee. The court allowed her suit to move forward under Title VII, reasoning that “sex discrimination” encompassed “sex stereotyping” and “sex-based considerations.” From this point onward, courts have generally followed Price Waterhouse’s command that “sex-linked evaluations” regarding masculinity, femininity, and adherence to gender roles are invalid under Title VII.
Oddly enough, the North Carolina lawsuit doesn’t even mention Price Waterhouse. It does list a series of decisions—many from the pre-Price Waterhouse era—rejecting Title VII suits on the basis of gender identity discrimination. But it is misleading (at best) to include these cases without also noting the many judicial determinations that arrived at an opposite conclusion. For instance, the state’s complaint mysteriously omits Glenn v. Brumby, a 2011 decision by the 11th Circuit concluding that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination.” It elides a federal district court’s ruling that anti-trans discrimination is “literally” sex discrimination. It ignores a conclusion by the Equal Employment Opportunity Commission—the federal agency tasked with interpreting Title VII—that sex discrimination encompasses anti-trans discrimination.
We could keep going, but you get the idea. The notion that an interpretation of Title VII mandated by federal courts and the EEOC constitutes a “radical reinterpretation” of federal civil rights law is extraordinarily disingenuous. But what’s worse is that North Carolina fails to mention a ruling by the Fourth Circuit Court of Appeals from April 19 explicitly agreeing that “sex discrimination” may be read to encompass discrimination on the basis of gender identity. The Fourth Circuit’s decision involved a different federal law—one curiously unmentioned in Monday’s complaint—but hinged on virtually identical language about “discrimination because of sex.” North Carolina’s complaint does not even attempt to explain how the state plans to get around this ruling.
Predictably, the state mounts a backup argument: Even if Title VII encompasses gender identity, North Carolina argues, HB2 does not actually discriminate against trans people by forcing them to use the bathroom that corresponds to the sex listed on their birth certificate. The law applies equally to everyone, the state insists; trans people face no special burden. This claim cannot be taken seriously. Many states make it extremely difficult for trans people to change their birth certificate sex. Some, including North Carolina, require that individuals undergo sex reassignment surgery before altering their birth certificate—an expensive procedure many trans people do not want or need. Others, including neighboring Tennessee, simply forbid trans people from changing their birth certificate sex altogether. If HB2’s bathroom provision is not anti-trans discrimination, then nothing is.
The complaint’s second charge is, somehow, far sillier. In its notice, the DOJ drew attention to the fact that the Violence Against Women Reauthorization Act (VAWA) explicitly bars gender identity discrimination. North Carolina’s decision to explicitly legalize gender identity discrimination would seem to jeopardize about $5 million in federal grants authorized to the state by VAWA. Here is North Carolina’s response to that fact:
Even if VAWA specifically includes gender identity as a protected class [note: it indisputably does], North Carolina law is not discriminatory because it allows accommodations based on special circumstances, including but not limited to transgender individuals.
In short, the state claims that HB2 doesn’t violate VAWA’s bar on gender identity discrimination because trans people are free to use a single-stall bathroom, if they can find one. That is not the argument of a winning party.
There is a short-term silver lining to this mess for North Carolina: As ThinkProgress’ Ian Millhiser notes, the case has been assigned to Judge Terrence Boyle, a Reagan appointee and a former aide to Republican cultural war crusader Sen. Jesse Helms. But Boyle’s record implies that he, too, might view trans discrimination as sex discrimination—and, either way, this case is destined for the Fourth Circuit, whose Democratic appointees are sure to dispose of it swiftly. Make no mistake: This move is a Hail Mary, and it is destined to failure. The only question now is how much longer North Carolina will continue its doomed attempt to relegate trans people to second-class citizenship.