# Legal Experts: US DOJ vs NC **URL:** \ **Category:** In My Humble Opinion\ **Created:** [May 5, 2016, 7:36pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005 "2016-05-05T19:36:46Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 11, 2016, 8:08pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/41 "2016-05-11T20:08:50Z")
> [@Left\_Hand\_of\_Dorkness](#): > > My understanding is that it’s permissible because: > > 1. It has a reason (namely, a huge number of people desire sex-segregated bathrooms); and > 2. It doesn’t cause significant harm: virtually no (probably just “no”) cis folk suffer psychological or other harm from this segregation. > > When you add in trans folk, though, really all you’re adding in is the harm piece: now, this segregation by sex is causing specific and serious harm to specific people. > > If I’m incorrect about when sex-based discrimination is permissible, my whole analysis falls apart. To add to this: if bathrooms are instead segregated by self-identified gender, we’re back to: 1. It has a reason (same as above); and 2. It no longer causes any significant harm. That’s the system that was informally in place before, with only the occasional brutal vigilante violence to suggest otherwise. A return to that system seems to allow segregation. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [May 11, 2016, 8:52pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/42 "2016-05-11T20:52:16Z")
> [@Left\_Hand\_of\_Dorkness](#): > > When you add in trans folk, though, really all you’re adding in is the harm piece: now, this segregation by sex is causing specific and serious harm to specific people. More than just those specific transgender people, too. If they follow the NC law and a F-to-M transgender big, hairy bulldozer driver wearing his overalls & construction boots\* walks into the Womens rest room, it’s going to be very upsetting to the ladies in there! \*I know someone like this. The name on his birth certificate is “Maria”. ---
**Author:** ![Rick\_Kitchen](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rick_kitchen/32/522_2.png) [@Rick\_Kitchen](https://boards.straightdope.com/u/Rick_Kitchen)\ **Post date:** [May 11, 2016, 10:12pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/43 "2016-05-11T22:12:07Z")
> [@romansperson](#): > > The Attorney General here has already said he will not defend against any suits brought in regards to this bill to boot. The Attorney General is also a Democrat who is running against the Republican Governor. Not that I disagree with his stance. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 11, 2016, 10:34pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/44 "2016-05-11T22:34:02Z")
> [@Rick\_Kitchen](#): > > The Attorney General is also a Democrat who is running against the Republican Governor. Not that I disagree with his stance. This is true, but the implication that he’s doing this for purely partisan purposes may not be true. Since [at least 2014](http://www.wral.com/nc-to-stop-defending-marriage-amendment/13846324/), when he’s seen a conflict between state and federal/constitutional laws, he’s erred on the side of not defending laws he sees as unconstitutional. Certainly there may be some partisanship behind his decision, but I think it runs in the opposite direction at least as much: he’s so disgusted at McCrory’s surrender to the anti-civil-liberties state legislature that he wants to be the change, wants to be the governor so he can block some of their nonsense. ---
**Author:** ![romansperson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/romansperson/32/17100_2.png) [@romansperson](https://boards.straightdope.com/u/romansperson)\ **Post date:** [May 11, 2016, 10:39pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/45 "2016-05-11T22:39:10Z")
> [@Rick\_Kitchen](#): > > The Attorney General is also a Democrat who is running against the Republican Governor. Not that I disagree with his stance. I’m aware of that, but I also believe he wouldn’t abandon his responsibility to defend **if** he felt the state had a legal leg to stand on. It’s his job, after all. Sometimes you have to do that even if you find it personally distasteful. I’m certainly no lawyer, but there are plenty of folks who are who also agree with his assessment and if you look at the bill as a whole, I agree with their arguments, for whatever it’s worth. The Atlantic article linked upthread is a good example. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [May 11, 2016, 11:20pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/46 "2016-05-11T23:20:46Z")
> [@t-bonham@scc.net](#): > > More than just those specific transgender people, too. If they follow the NC law and a F-to-M transgender big, hairy bulldozer driver wearing his overalls & construction boots . . . walks into the Womens rest room, it’s going to be very upsetting to the ladies in there! Haven’t there already been a number of publicly-staged “restroom protests” of this nature? Big burly bearded transmen making a point of using “ladies’ rooms” for highly publicized photo-ops? It’s a case of people not thinking through all the consequences of their legislation. People are very diverse, and you can’t pigeonhole or shoehorn us all into simple categories. Worse, it’s damn foolish even to try. It just makes the “anti” side look like their obsessional about urination. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 13, 2016, 2:54pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/47 "2016-05-13T14:54:26Z")
Was the text of the complaint ever cited in this thread? I thought it was, but skimming the thread I’m not seeing it, so [here it is](https://assets.documentcloud.org/documents/2827915/NC-DOJComplaint.pdf). ---
**Author:** ![Pantastic](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@Pantastic](https://boards.straightdope.com/u/Pantastic)\ **Post date:** [May 13, 2016, 2:59pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/48 "2016-05-13T14:59:37Z")
> [@Left\_Hand\_of\_Dorkness](#): > > This is true, but the implication that he’s doing this for purely partisan purposes may not be true. Since [at least 2014](http://www.wral.com/nc-to-stop-defending-marriage-amendment/13846324/), when he’s seen a conflict between state and federal/constitutional laws, he’s erred on the side of not defending laws he sees as unconstitutional. Yes, there have been a good number of state AGs who have refused to defend laws they believed were indefensible in the last few years, most of them centering around gay marriage. This isn’t a new thing, and seems to me to be much more of a ‘this is a really stupid law that is going to get destroyed in higher court’ than ‘this is a political opponent’s law, I’m not going to defend it to make them look bad’. ---
**Author:** ![Gedd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gedd/32/4938_2.png) [@Gedd](https://boards.straightdope.com/u/Gedd)\ **Post date:** [May 13, 2016, 3:52pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/49 "2016-05-13T15:52:58Z")
The law causes no harm? Have you seen the [videos](https://au.news.yahoo.com/a/31467354/police-forcibly-remove-lesbian-from-ladies-bathroom/)and [stories](http://www.advocate.com/business/2015/06/17/detroit-woman-kicked-out-restaurant-bathroom-looking-man-sues) of women who look masculine getting kicked out of bathrooms? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 15, 2016, 8:26pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/50 "2016-05-15T20:26:03Z")
> [@Bricker](#): > > The registration requirement applies to men, 18-25 only. > > So far as I am aware, there have been no cases in which a transgendered individual has been penalized for failure to register. > > In short: I dunno. Yes, there have been no prosecutions for failure to register, but a male is ineligible for student loans if he does not/did not register. I went back to school in my early 30s. If I had not registered for Selective Service, there was no way I could remedy the situation, and I would have been screwed if I wanted any loans. Under the new scheme, could I simply have declared that during ages 18-26, I identified as a female, therefore I did not need to register? And let’s just assume that this new idea holds water. Does it follow that evidentiary requirements are allowed? Could the feds require that I produce witnesses that will testify that, “Yes, when he was 24, Ultravires told me he identified as female” or must they accept my word? Will they accept a “change” in gender identification? Suppose when I applied for the loans at age 32, I then identified as my birth gender: male. But I pinky-promise that when I was 18-26, I identified as female. Does that change things? Suppose that I admit that for a period of one month when I was 22, I identified as male again. Does that change things? I am not suggesting that transgendered folks are engaging in this sort of fraud. I am asking if the state of the law (one simply has to declare one’s gender) will permit those like me from committing this sort of fraud. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 15, 2016, 8:32pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/51 "2016-05-15T20:32:57Z")
It depends on which law we are talking about. Some do require “sincere” gender identity, which can be factually challenged. The language used is often the same as when religious affiliation is used to avoid generally applicable requirements, so I imagine the proofs are the same (perhaps to the discomfort of people on both sides of the debate). ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [May 15, 2016, 8:35pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/52 "2016-05-15T20:35:02Z")
> [@Gedd](#): > > The law causes no harm? Have you seen the [videos](https://au.news.yahoo.com/a/31467354/police-forcibly-remove-lesbian-from-ladies-bathroom/)and [stories](http://www.advocate.com/business/2015/06/17/detroit-woman-kicked-out-restaurant-bathroom-looking-man-sues) of women who look masculine getting kicked out of bathrooms? How about the woman who is a woman, identifies as a woman and is [followed into the women’s restroom](http://www.nydailynews.com/news/politics/texas-man-woman-bathroom-check-gender-article-1.2622029) by a man who thought she was a man. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 15, 2016, 8:45pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/53 "2016-05-15T20:45:11Z")
> [@UltraVires](#): > > Yes, there have been no prosecutions for failure to register, but a male is ineligible for student loans if he does not/did not register. I went back to school in my early 30s. If I had not registered for Selective Service, there was no way I could remedy the situation, and I would have been screwed if I wanted any loans. > > Under the new scheme, could I simply have declared that during ages 18-26, I identified as a female, therefore I did not need to register? C’mon. Do you really think that would work? Or do you think they’d require action on your part to raise the issue ahead of time? I seem to recall your raising similar silly situations as a rear-guard action against SSM. The legal system is not so easily stymied, in my experience. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 15, 2016, 8:57pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/54 "2016-05-15T20:57:18Z")
> [@Left\_Hand\_of\_Dorkness](#): > > C’mon. Do you really think that would work? Or do you think they’d require action on your part to raise the issue ahead of time? > > I seem to recall your raising similar silly situations as a rear-guard action against SSM. The legal system is not so easily stymied, in my experience. Raise what issue? When I (the hypo I) turned 18, I already self-identified as female. Therefore, I was female, and did not need to register for selective service. Are you suggesting a different standard for those who are born female and those who identify as female? Does the same thing apply to the use of restrooms? Does it “require action” on my part prior to entering a women’s restroom? A form? A sworn statement? An oral declaration in the town square? ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [May 15, 2016, 11:08pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/55 "2016-05-15T23:08:09Z")
I was under the impression that (1) the sexual segregation before this issue was not a law and thus (2) the discrimination calculation was different. Is there a difference in sexual discrimination under force of law and via what amounts to custom? I assume voluntary segregation is okay, but could you be kicked out for trespassing if you were the “wrong” sex–or could a valid suit come from that alone (again, prior to this law)? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 16, 2016, 2:41am UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/56 "2016-05-16T02:41:49Z")
> [@UltraVires](#): > > Raise what issue? When I (the hypo I) turned 18, I already self-identified as female. Therefore, I was female, and did not need to register for selective service. Are you suggesting a different standard for those who are born female and those who identify as female? OH NO THE JUSTICE SYSTEM IS GOING TO FALL APART!!! or maybe it won’t. Cases like this are going to be extremely rare. Almost certainly the justice system can handle them. Here are three totally reasonable ways to handle them: 1. Don’t even give a shit about them. The selective service’s punitive measures are pretty dumb anyway, as is the selective service itself given our volunteer military. 2. Require someone at some point in the process to provide evidence of their ongoing gender identity. 3. Handle these cases however they’re currently handled, I mean, my god, it’s not like trans people popped out of a spacecraft in 2014 and we’re all atwitter trying to figure out who they are and what their secret plan for earthlings is. > [@](#): > > Does the same thing apply to the use of restrooms? Does it “require action” on my part prior to entering a women’s restroom? A form? A sworn statement? An oral declaration in the town square? Gee, I dunno, does it? Hint: it generally requires that a person has shown ongoing determination to live as the gender to which they’ve transitioned. People are rightly skeptical of someone whose first declaration of their new gender identity is running into the women’s locker room. Since that’s happened about once so far, and since the person engaging in that activity was (shocker!) not actually interested in transitioning according to all evidence, that’s not where we should be focusing our attentions. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [May 16, 2016, 2:22pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/57 "2016-05-16T14:22:39Z")
> [@Left\_Hand\_of\_Dorkness](#): > > My understanding is that it’s permissible because: > > 1. It has a reason (namely, a huge number of people desire sex-segregated bathrooms); and > 2. It doesn’t cause significant harm: virtually no (probably just “no”) cis folk suffer psychological or other harm from this segregation. > > When you add in trans folk, though, really all you’re adding in is the harm piece: now, this segregation by sex is causing specific and serious harm to specific people. > > If I’m incorrect about when sex-based discrimination is permissible, my whole analysis falls apart. Sex based discrimination usually is subject to intermediate scrutiny: > [@](#): > > Intermediate scrutiny is a test used in some contexts to determine a law’s constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First > **[intermediate scrutiny](https://www.law.cornell.edu/wex/intermediate_scrutiny)** If we are strictly honest with ourselves sex segregated restrooms and locker rooms should be unconstitutional. Where is the important government interest here? Like with transgendered people, the danger of mixed locker rooms is imaginary. It all comes down to culture based fear and discomfort. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 16, 2016, 3:21pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/58 "2016-05-16T15:21:54Z")
> [@treis](#): > > Where is the important government interest here? Is “meeting the desires of most of its citizens, without imposing a real burden on anyone” not an important government interest? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [May 16, 2016, 3:26pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/59 "2016-05-16T15:26:07Z")
This may have something to do with standing. Who would have standing to challenge bathrooms separated by gender identity? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 16, 2016, 3:40pm UTC](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005/60 "2016-05-16T15:40:28Z")
If it isn’t a real burden to share a locker room with someone with a penis, then no real burden is imposed on transwomen who have to share a locker room with someone with a penis. And I realize that this is IMHO, but do you have any indication that “most (US) citizens” desire to allow penises in the ladies room? Regards, Shodan [Previous page](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005.md?page=2) [Next page](https://boards.straightdope.com/t/legal-experts-us-doj-vs-nc/754005.md?page=4)