Who would have thought 2016 would become the year of the "bathroom wars?" Both sides in this cultural battle have now appealed to the courts, with North Carolina's Gov. Pat McCrory and legislative leaders suing President Obama's Department of Justice (DOJ), while DOJ is suing North Carolina public officials. DOJ charges that the state's House Bill 2 (HB 2, enacted in March) violates federal law.
This is a stunning claim. HB 2 codifies (for government buildings only) something that has, until recently, been completely taken for granted -- namely, that multiple-user public restrooms, locker rooms, and showers are to be separated on the basis of biological sex.
HB 2 was written in response to an ordinance adopted in Charlotte that would have barred "discrimination" on the basis of "gender identity." Transgender activists interpret such laws as requiring that biological males who claim to be "women" be allowed to share restrooms, locker rooms, and showers with actual biological females. HB 2 reversed the Charlotte ordinance, leaving private businesses and organizations free to adopt whatever bathroom policy they choose.
Having a biological male in the ladies' room would create discomfort and anxiety for many women. Furthermore, the impossibility of verifying someone's "transgender" status would make it easy for sexual predators to exploit such laws to gain access to women and girls.
The Obama administration asserts that the state's policy violates three federal laws. The Civil Rights Act of 1964 forbids discrimination in employment on the basis of sex (among other things). The DOJ claims that the state is discriminating against transgender state employees by not allowing them to use the restroom that corresponds to their "gender identity." Title IX of the Education Amendments of 1972 forbids discrimination on the basis of sex in education. The DOJ claims that the University of North Carolina is violating this law by upholding HB 2 on its campuses.
Neither of these statutes mentions "gender identity." They address discrimination based on "sex." Regulations implementing them make clear that it is not sex discrimination to maintain separate sleeping quarters, restrooms, locker rooms, and showers on the basis of sex. It is absurd to think that Congress intended (in 1964 and 1972) to allow some biological males to make use of women's restrooms, locker rooms, and showers.
The third law, the 2013 reauthorization of the Violence Against Women Act (VAWA) included a "nondiscrimination" provision based on "gender identity." The principal intent of this was to insure that transgender persons are protected against domestic violence. It seems doubtful that the intent of Congress was to open bathrooms to the opposite biological sex.
Indeed, it would be ironic if a law ostensibly aimed at preventing violence against women ends up enabling stalking or violence by allowing biological males into women's bathrooms, locker rooms, and showers.
Family Research Council believes that "gender identity" should not be a protected category under "non-discrimination" laws at all, because the behavioral choice to cross-dress (unlike, say, race) is not inborn, involuntary, immutable, innocuous, or in the U. S. Constitution.
I do not believe that North Carolina's HB 2 violates federal law by "discriminating" based on sex (or even "gender identity"). However, I would go further and argue that the bathroom issue does not fit into a conceptual framework of "discrimination" at all.
Usually (as in the classic case of race) we identify "discrimination" when a class of people is denied a service altogether (as when restaurants refused to serve black patrons) or when services are provided in separate facilities (as when blacks and whites were assigned to different public schools).
In the bathroom debate, however, no one is telling transgender people they can't go to the bathroom at all. Furthermore, all sides of the debate agree that the separation of male and female restrooms, locker rooms, and showers is reasonable and acceptable, so separate facilities are not the issue.
Instead, the question is: How do we define "male" and "female?"
The conservative view is that these should be defined on the basis of objective biological sex, as identified at birth. The leftist view is that these should be defined on the basis of subjective "gender identity," based on the individual's internal self-perception.
This is a clash of philosophy or worldview; but it is not really an issue of "discrimination." Separating bathrooms and other facilities on the basis of biological sex treats all people of the same biological sex the same. Separating them on the basis of "gender identity" treats all people of the same gender identity in the same way. One must choose one or the other approach -- they cannot be reconciled.
The text of the Constitution and federal statutes are silent as to this philosophical choice. Therefore, neither the Justice Department nor federal judges should impose their preference for the "gender identity" paradigm upon states.