This runs the equal protection argument into the ground. Any law will only affect those that desire to break it.
This argument further runs the Loving case into the ground (which admittedly the Obergefell case has provided ammunition for doing so).
Yes, it is not good enough to say that blacks can marry blacks or that whites can marry whites, but can we make no distinctions at all? Why is it okay that only those travelling in the opposite direction can travel in the lane on my left? Why can’t I drive in that lane? If I have poor test scores, then why am I not granted equal access to college admission on the same basis as those with high test scores? Sure, I can go to a lesser college or a trade school, just like blacks can only marry blacks. The argument has no limiting principle.
The law provides no protection for those who have “been sexually reassigned.” That is begging the question. The law provides only for protection against discrimination based on sex, e.g. you cannot do this or that because you are a male/female. Transgender status is simply not a protected class. It is, he he, ultravires, for the DOJ to make up new law in this regard.
Is the entire concept of male and female restrooms unconstitutional in your mind? I would hope not. If not, then surely a state government may set criteria as to who qualifies as a male or a female for restroom purposes. We may disagree with that criteria, but that doesn’t make it violate the constitution.
I don’t see how you arrive at that conclusion. My argument is the one that is usually used in such discussions. The law tried to say that white men could not marry black women; this was overturned, in part because it violates equal protection.
How do you see it as not violating equal protection?
The people who favored such restrictions tried to argue that it affected everyone equally, but that reasoning isn’t accepted today.
I agree that, at this point in time, transgenders are not a protected class, the way race, sex, religion, and national origin all are. Sexual orientation is starting to become protected (I don’t know if it has officially become so, but it is very much taken into account in court cases today.) I hope that transgendered individuals will soon become a protected class; I think that is definitely the direction we’re going.
There actually is an argument to be made that sex-segregated bathrooms are unconstitutional – in cases where there is a lack of “bathroom equity.” When a given baseball game sees women lined up forty deep to use the restroom, while the men don’t have to wait at all, then something has gone pretty badly wrong. There have been actual lawsuits over this, requiring architects to take into account actual usage patterns, and not merely “Five men’s rooms and five women’s rooms.”
(Equal access lawsuits are also why we often see baby diaper change stations in men’s rooms: it is discriminatory to deny a man the same ability to change his baby’s diapers that a woman was given.)
Anyway, I’m not at all clear what it is you’re disagreeing with me over.
I don’t know, ISTM that there was only one relevant precedent in the bunch.
It’s like when you cite to 17 sources but 16 of them are things that are not really in dispute and only the 1 remaining one is.
In this case, the problem with cites like the one you list is that they involve proving that discrimination against people on the basis of their transgender status is a violation. That suffices in cases like people being denied partnerships, because being denied a partnership is clearly a harm. The only question in that case is whether you can inflict that harm based on transgender status or not.
In the case of bathrooms, the problem is that the transgender people have a bathroom they can use. They’re just being treated in accordance with their physical gender versus their identity gender. If you buy that a state has latitude to decide that a person’s gender is defined by their physical state and not by their identity, then there is no discrimination - a transman is by law a woman and is being treated exactly as are all other women, and so on. It’s not like being denied a partnership, where neither men nor women are denied partnerships but only trans people.
The only way this gets to be discrimination is if you accept that a person must be considered as the gender that aligns with their gender identity. Once you accept that, then the trans person is being treated differently than others of the same gender. This is what the DOJ’s case rests on. But it seems like the only precedent which addresses this is the EEOC position.
You are confusing sex with gender. They are not the same. Barring rare biological abnormalities, there are only two sexes: XX (woman) and XY (man). Gender isn’t necessarily binary, though most Americans typically match gender to sex and assume only two. So there’s a lot of people who fail to distinguish between the terms, including lawyers.
(Also, people don’t like to say “sex” for anything other than the act of sexual congress, so they tend to substitute “gender” with admirably Victorian prudishness.)
I think U.S. federal law prohibits discrimination by sex, but as far as I’m aware it does not prohibit discrimination by gender, so that firing someone for being gay is okay but not for being a woman. I’m happy to be educated here, though.
Not quite accurate. The NC Attorney General does represent the State in appellate criminal actions, but the trial work is done by the local District Attorneys - who are elected officials, and their assistants, who, while working with the AGs office, do not answer to the AG. If there is a conflict in the DA’s office, then the AG will prosecute, but that happens very rarely.
Jenny and Suzy both identify as women. Both want to use the women’s room. Both present to the world as women.
Jenny was assigned male at birth. Suzy was assigned female at birth. Based on nothing but the sex assigned on their birth certificate–based explicitly on that–Jenny and Suzy are treated differently by the law.
I think that satisfies the question of whether there’s sex discrimination. The complaint establishes that it’s significant and deleterious discrimination as well.
You’re saying “Based on nothing but the sex assigned on their birth certificate” as if it’s self-evident that this cannot carry any legal weight and ignored. But that question seems to be exactly the crux of the issue, and something you would need precedent for.
Based on the sex assigned them at birth, Suzy and Jenny are treated differently in a number of other respects that have been upheld by law. For example, Jenny is required to register for Selective Service, and the failure to do so risks a loss of eligibility for college loans and criminal sanctions to boot.
So we cannot simply say, as a matter of law, that any regulatory scheme treating Jenny and Suzy differently is infirm.
It might not be a complete analysis, but I believe the two claims I made–that it establishes sex-based discrimination, and that it’s established as deleterious–are both correct. Do you disagree with that?
What are the full criteria for sex-based discrimination that’s prohibited by the Civil Rights Act?
On the contrary, I’m saying exactly the opposite: I’m saying that it’s hard to imagine a criterion for discrimination that is more purely a sex-based criterion for discrimination. If you discriminate based on hair length, or time taken to care for kids, or upper body strength, it’s totally plausible that it’s not sex-based discrimination. But if you discriminate based on sex assigned at birth, that is unambiguously sex discrimination. That’s why I phrased it that way.
I absolutely agree that it establishes sex-based discrimination.
I’m not sure I agree that it’s “deleterious,” but for the purposes of this discussion, let’s assume it is.
Title VII prohibits sex-based discrimination by an employer.
However, while some federal courts and the EEOC have determined that this standard applies to the transgendered, other federal courts have not. Notably, the Fourth Circuit, in which North Carolina is placed, has not made that determination.
So the Department of Justice and the EEOC are saying, in essence, “Title VII prohibits denying sex-segregated restrooms to people whose gender identity differs from the gender assigned at birth.”
North Carolina is (presumably) going to say in response, “That’s not a given: some courts have said so, but the Fourth Circuit has not said so, and we don’t read Title VII to have that requirement.”
Which “begs the question” (yeah, I know!!): Do F-> M transgendered folk have to register for the draft, and are M -> F transgendered exempt? Is “self-identified” M/F enough? If not, it would seem that the Federal Government needs to heal itself.
Yes, so much has been focused on the washroom issue that people seem to forget that HB2 has other provisions:
[QUOTE=The Atlantic Magazine]
Part II says that no city or county can require its contractors not to discriminate against employees or customers based on sexual orientation. Part III invalidates all present city and county ordinances protecting LGBT people from discrimination in private employment and public accommodations. It provides that only the state legislature can enact such a law from now on.
[/QUOTE]
I agree with the article’s author that this part of the law runs afoul of Romer v. Evans, 517 U.S. 620 (1996). IMHO, there are three interesting aspects of Romer:
It preceded by several years Lawrence v. Texas (2003), the case that overruled the infamous Bowers v. Hardwick.
It did not rely upon declaring sexual orientation a protected class with scrutiny higher than rational-basis, but found a state ban on including sexual orientation in local anti-discrimination ordinances fails rational-basis review.
[QUOTE=Justice Kennedy, in Romer]
By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.
[/QUOTE]
and
[QUOTE=Justice Kennedy, in Romer]
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
[/QUOTE]
and
[QUOTE=Justice Kennedy, in Romer, quoting Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)]
“*f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
[/QUOTE]
The lengthy (and IMHO antediluvian) dissent was written by Scalia, who is (God rest his soul) no longer with the Court and thus will not contribute if the South Carolina law makes its way to the Court.
But if you’re saying being forced to use a bathroom based on your gender is sex discrimination, then any woman or any man could claim sex discrimination based on the fact that they’re being barred from use of a bathroom based on their gender. Obviously that’s not going to be a winning argument.
Based on the letter from the DOJ linked above, that does not seem to be the approach they’re taking. What they’re saying seems to boil down to:
[ol]
[li]Women/men are allowed to use the women’s/men’s bathroom[/li][li]Transwomen/men are a subset of women/men[/li][li]You’re specifically barring transwomen/men from something that you allow other women/men to have[/li][li]Therefore you’re discriminating against a subset of women/men based on their transgender status[/li][li]Discriminating based on transgender status is prohibited.[/li][/ol]
As above, ISTM that most of the legal precedents establish Item #5 in the above list, while the actual weak point is Item #2.
WHen I say it was established, I meant the complaint itself–the text of the complaint goes into pages of detail about how it’s deleterious.
I’m confused, and not entirely sure how even to express this confusion. It seems like a non sequitur to me of sorts, like saying, “It’s definitely sex-based discrimination, but it’s not clear whether sex-based discrimination applies to vegans.”
If it’s discrimination to treat people differently based on what’s on their birth certificates, why should it matter whether those people treated differently are transgender? Sex-based discrimination is sex-based discrimination.
People with an M on their birth certificate who identify as female can’t use the female bathrooms in NC, whereas people with an F on their birth certificate who identify as female can.
If the circumstances were different–if people with an M on their birth certificate who identfiy as vegan can’t get a vegan meal at the company cafeteria, whereas people with an F on their birth certificate who identify as vegan can–would veganism be a confounding factor? Would we need to examine which circuit courts had decided on the vegan meal issue, or would we immediately recognize it as a discriminatory practice?
We’ve got two people who are identical in nearly every way and want exactly the same thing. The only difference is their sex as determined by a birth certificate. Everything else about them, again, is identical. North Carolina says that, based purely on that birth certificate sex, they should be treated differently. I don’t see where the ways in which they’re identical is legally relevant, whether that’s that they’re both vegan or that they both identify as female.
The fact that one is trans and the other is cis isn’t a difference between them, as I understand it; rather, that’s a conflation of a similarity between them (their identified gender) and a difference between them (their sex assigned at birth). This might be the source of the confusion: it’s important to recognize that “cis” or “trans” is actually two different factors put together, involving a relevant similarity and a relevant difference.
We would immediately recognize it as a discriminatory practice.
But that would not end the inquiry.
Some discriminatory practices are permissible.
North Carolina will (presumably) argue that the birth certificate sex is “real,” and that the gender with which they self-identify is “less real,” and that they are simply enforcing the practice of requiring women to use the women’s room and men to use the men’s room.
Now, that in itself is discriminatory, isn’t it? I mean, I, as a person assigned the gender “male,” at birth, and who self-identifies as male, cannot use the women’s restroom, and that’s not true of someone who is assigned the gender “female,” at birth and self-identifies as female. Right?
Nonetheless, that kind of discrimination is permissible.
So the question is: for purposes of the law, is it permissible to discriminate on the basis of gender assigned at birth for controlling use of public restrooms?
North Carolina, presumably acknolwedging the fact that some courts and some administrative agencies have found that it is not, nonetheless argues that it is permissible: that the gender assigned at birth is of paramount importance.
This is why I was asking what discrimination was forbidden. My understanding–and it’s very limited and could be wrong–is that discrimination is allowed when it:
has a good reason; and
causes no significant harm.
Are those the criteria under which discrimination is allowed?
Sure. For this discussion, I’ll completely stipulate that the birth certificate is more real than the self-identified gender. I think that hurts their case, since it solidifies the evidence that it’s sex-based discrimination.
My understanding is that it’s permissible because:
It has a reason (namely, a huge number of people desire sex-segregated bathrooms); and
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.