The Obama administration is treading on thin legal ice in its effort to get Gov. Pat McCrory and the UNC system to eliminate the bathroom privacy provisions spelled out in House Bill 2, a Campbell University law professor says.
On Wednesday, the U.S. Justice Department sent a letter to state officials maintaining that the law violates the U.S. Civil Rights Act, citing Title VII, which prohibits sex discrimination in the workplace, and Title IX, which prohibits sex discrimination in education. The department gave the state until Monday to respond.
But Gregory Wallace, associate professor at Campbell University’s Norman Adrian Wiggins School of Law, said Thursday, “There’s nothing in the text of either Title VII or Title IX that prohibits discrimination based on sexual orientation or gender identity.” He pointed out that while activists for lesbian, gay, bisexual, and transgendered people have tried for years to get sexual orientation and gender identity included in federal law, they have been unsuccessful.
Further, said Wallace, Title IX actually has regulations that exempt gender-separated bathrooms, showers, and similar facilities from charges of sex discrimination. The Justice Department’s “broad interpretation of the law is based on very thin legal arguments, particularly as applied to showers, locker rooms, and restrooms, because Title IX has actually had specific regulations that exempt bathrooms, showers, and similar facilities from there being sex discrimination,” he said.
John Dinan, professor of politics and international affairs at Wake Forest University, said the case would likely come down to whether discrimination on the basis of sex would be read to encompass discrimination based on gender identity.
“We haven’t yet fully worked this out in the courts yet,” Dinan said. “These are claims to be advanced.”
Dinan said that state officials likely will bring up that advocates for transgender rights who are members of Congress have proposed amending the Civil Rights Act to include gender identity because the act currently does not include the protections that the Justice Department’s letter seems to imply are there.
Dinan noted that, unlike the letter to McCrory, the Justice Department’s letter to UNC President Margaret Spellings referenced the Violence Against Women Act, which, unlike Title IX and Title VII, explicitly includes protections for people based on gender identity.
Wallace said the Justice Department is stretching the definition of sex discrimination. “The Obama administration is trying to bootstrap sexual orientation and gender identity discrimination into the law under the prohibition on sex discrimination,” he said.
Even if there wasn’t a Title IX regulation exempting bathrooms from falling under sex-discrimination laws, Wallace said, most courts have recognized implicit exceptions for separate bathrooms and locker rooms.
“Now the Obama administration is trying to turn all that on its head by a very thin legal argument,” Wallace said. “It does not adequately address the competing privacy interest that arises when you have a person with a male anatomy using a female locker room and shower, and vice versa.”
Sarah Preston, acting director of the ACLU of North Carolina, argues that the Justice Department’s expanded view of sex discrimination is legitimate.
“The way the federal departments have interpreted the law, it does include discrimination based on gender identity and sexual orientation,” Preston said. She says court cases, including a recent 4th U.S. Circuit Court of Appeal case out of Virginia, affirms that.
Preston said that while Title IX permits separate restrooms for women and men, Department of Education guidelines include accommodations for gender identity.
Wallace said that the state isn’t likely in danger of losing federal education dollars if it doesn’t comply with the Justice Department’s demands by Monday, as the letter prescribed, because even if the federal government tried to cut off funding, the state could likely get the courts to issue an order continuing funding until the case ultimately is resolved.