WHEN John Locke chose Cicero’s dictum “salus populi suprema lex esto” (“let the public welfare
be the supreme law”) as the epigraph for his Second Treatise on Government, it’s safe to say he wasn’t thinking about toilet
rules.
But 327 years after Locke wrote his defence of limited government and
natural rights, America’s latest legal-political spat involves grown-ups
debating who gets to use which loo.
First, in March, legislators in North Carolina sought to subvert an
anti-discrimination ordinance in Charlotte, the state’s biggest city, that
permitted transgendered people to use public restrooms corresponding to their
gender identity.
The Republican-led legislature quickly drafted and passed a
law, the Public Facilities Privacy and Security Act, requiring people in
schools and government buildings to use the bathroom matching the sex recorded
on their birth certificate. Then, in response, the federal government wrote
North Carolina’s governor, Pat McCrory, a rather strongly worded letter telling
him that the bathroom bill violated the Civil Rights Act of 1964 and threatening
to withhold more than $4 billion in education funding if he did not suspend the
law’s implementation.
Governor McCrory fired back with a lawsuit claiming that
Attorney General Loretta Lynch and the Department of Justice were engaged in
“baseless and blatant overreach” fuelled by a “radical” reading of civil-rights
law. The feds then filed a lawsuit of their own charging that North Carolina’s
law “stigmatises and singles out transgender employees” and “perpetuates a
sense that they are not worthy of equal treatment and respect”.
On May 13 there came another sign that the Obama
administration means business. Education and Justice department officials sent a letter and 25-page how-to pamphlet to school districts across the country
indicating that transgender students should be allowed to use the bathroom that
matches their gender identity. Aware that the instruction will provoke
resentment among some parents and students who would rather limit bathroom
access according to biological sex, the administration explained that it is
“consistently recognised in civil rights cases” that “the desire to accommodate
others’ discomfort cannot justify a policy that singles out and disadvantages a
particular class of students.”
At bottom, the conflict is over whether members
of a marginalised community must be accommodated when relieving themselves. But
the legal question is a little tricky. One relevant passage in the federal
civil-rights law, Title VII, says that employers may not “discriminate against
any individual with respect to his … terms [or] conditions … of employment,
because of such individual’s race, colour, religion, sex, or national origin.”
Another section, Title IX, says that “no person in the United States shall, on
the basis of sex, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education program or activity
receiving federal financial assistance”.
Notice that “sex” is mentioned in both
passages as an illicit basis of discriminatory treatment, but “gender” is not.
For some conservatives, this is a big deal. Edward Whelan, president of the
Ethics and Public Policy Center who clerked for the late Justice Antonin
Scalia, dismisses the Justice Department's interpretation of Title VII as a
"puddle of goo". He insists that “sex” simply means “biological sex”. This is the basis of North
Carolina’s contention that its law is perfectly consistent with Title VII:
“North Carolina does not treat transgender employees differently from
non-transgender employees. All state employees are required to use the
bathroom...assigned to persons of their same biological sex, regardless of
gender identity, or transgender status.”
Most people indeed see “sex” as fixed and
biological while “gender” is a fluid, cultural category comprising
characteristics normally described as “masculine” or “feminine”. But as it
happens, in the language of the law, the two terms are deeply intertwined. In
the index of a 1993 compendium of writings on feminist legal theory, the entry
for “gender differences” is “See sex
differences”. The confluence of terms dates back to Price Waterhouse v Hopkins, a 1989 case involving a manager whose purported masculinity prevented her from
making partner.
Ann Hopkins, the employee, was advised by her bosses that if
she were to “take a course at charm school” and to “walk more femininely, talk
more femininely, wear makeup, have her hair styled and wear jewelry”, she just
might be considered for a promotion. By a vote of 6-3, the Supreme Court ruled
that Price Waterhouse was engaging in illegal sex discrimination when it made
employment decisions based on its view of Ms Hopkins's gender. Sex and gender
have been interwoven in Title VII jurisprudence ever since.
Mr Whelan offers another defence of North Carolina’s law that assumes, “for
the sake of argument, that Title VII’s ban on discrimination on the basis of
sex includes a ban on discrimination on the basis of gender identity”.
Requiring employers to permit transgender women to use the women’s toilets
would result in absurdities, he claims: “it would indisputably be
discrimination on the basis of gender identity for that employer to bar a male
employee who knows he’s a man from using those same facilities.” How so?
Because “the only difference between the two biological males is that they have
different gender identities”, and it’s illegal to discriminate according to
gender identity.
This curious bit of illogic cannot withstand a moment of scrutiny. A
transgender woman seeks access to the women’s bathroom because it’s the only
place she feels comfortable, while Mr Whelan’s imaginary non-transgender man
has no reason grounded in his identity to seek access to the women’s bathroom.
No court would entertain a claim that a male wanting in to a women’s bathroom
can cry discrimination if his transgender counterpart is admitted and he isn’t.
Unlike the Public Facilities Privacy and Security Act, a law that silently but
surely casts transgender people as deviants and potential child molesters, a
rule against non-transgender men staying out of women’s bathrooms implies no
animus against men generally and provides no basis for a lawsuit.
Both the
are-you-kidding-me preposterousness of the arguments and the vehemence of
Governor McCrory's attack on the Justice department are good signs that North
Carolina faces stiff winds in its legal battle to erect novel "keep
out" signs against its transgender citizens.
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