NC vs the Justice Department: Why Transgender Discrimination is Sex Discrimination

On Monday, Governor Pat McCrory of North Carolina and US Attorney General Loretta Lynch traded lawsuits over North Carolina’s anti-LGBT “bathroom” law. The law, commonly known as HB2, does a lot more than force transgender individuals to use public restrooms in accordance with their gender at birth. It also overturns all local anti-discrimination ordinances that protected individuals on the basis of sexual orientation or gender expression. Per the lawsuit filed by the Department of Justice, HB2 violates Title VII and Title IX of the Civil Rights Act, both of which prohibit discrimination “on the basis of sex” in workplaces and in education.

It is important for us to understand how the Justice Department makes the argument that barring transgender individuals from using the bathrooms that correspond to their gender identity violates a law that bans sex discrimination. For this discussion, I am going to leave to one side the incredibly rich (and important) social science discussion on the differences between “sex” and “gender”. The main reason for not engaging in this discussion is because the law refers only to “sex”.

When we are born, we are assigned a “sex” and it is written down on our birth certificates. That classification is based solely on the appearance of our genitalia. But that is not the only factor that goes into determining someone’s “sex.” There are other important determinants: chromosomes, internal organs, and gender identity. The term “gender identity” refers to an individual’s sense or feeling about whether he or she is male or female. So, individuals whose gender identity does not match the appearance of their reproductive organs, i.e., transgender individuals, have a particular problem at birth: the “sex” listed on their birth certificate is wrong.

When a transgender individual manifests a gender identity, he or she can try to change the sex on his or her birth certificate. But in many states, it’s incredibly difficult: it takes money, time, and sometimes, it even takes an operation and hormonal therapy. Not everyone can do it, but that doesn’t mean that their gender identity is any less worthy of respect.

Under HB2, a person whose gender identity matches his or her physical genitalia — for example, male sex organs/identifies as a man — is allowed to use a restroom in accordance with his or her gender identity — or, the Men’s Room. But HB2 discriminates against those whose gender identity does not match their sex organs. Transgender individuals are not allowed to use the restroom that accords with their gender identity.

Here’s where discrimination on the basis of “sex” comes in. Under HB2, a man whose gender identity is male can use a Men’s Room. However, a person with female genitalia whose gender identity is male cannot. As such, gender identity discrimination is discrimination on the basis of sex because it treats individuals of different sexes differently for no reason.

The Republican response to the DOJ rejects this view. Governor McCrory argues that gender identity is not protected by the Civil Rights Act’s prohibition on sex discrimination. He argues this in two ways. First, gender identity has never before been protected by Title VII or Title IX.

The correct response to that is: So what? The drafters of the Civil Rights Act may never have even knew or understood the phrase “gender identity” or the word “transgender.” That doesn’t mean that the law, which bans sex discrimination, doesn’t apply. Although transgender individuals certainly existed in 1964, when the Civil Right Act was first passed, what didn’t exist were a host of new understandings of sex, gender, and social life. A generally applicable law needs to apply to new questions. In this case, the application is pretty straight forward.

Second, Governor McCrory redefines the question. He argues that “transgender status” is not a protected class under the Civil Rights Act. The response to that is: That’s not the point. The Civil Rights Act prohibits, among other things, discrimination on the basis of “sex”. Transgender discrimination is sex discrimination. McCrory’s attempt at magician’s misdirection won’t fly.