Attorney General Loretta Lynch has teed up a question that needs to be answered: is discrimination against transgender folks sex discrimination? The Department of Justice has commenced suit against the State of North Carolina based upon its knee-jerk law in response to Charlotte’s transgender bathroom law. Despite various issues with the NC law, the suit goes to some core questions:
Title VII applies to workplace discrimination. It prohibits discrimination on the basis of sex. It makes no mention of discrimination on the basis of gender identity.
Title IX prohibits the denial of educational benefits on the basis of sex. It, too, makes no mention of discrimination on the basis of gender identity. The Violence Against Women Act, VAWA, prohibits discrimination based on gender identity, but applies only to programs funded by the act.
The debate is problematic on many levels.* Many people support the concept, supporting the elimination of discrimination against transgender folks. What is often missing from this belief is that it means that the rights afforded transgenders may come at the rights of others. Some don’t care, which is fine, but others do care. And those who don’t care refuse to acknowledge that their position forfeits other people’s rights based on their values.
But this suit, finally, calls upon the court to determine whether sex discrimination, as Congress provided in Titles VII and IX, includes gender identity discrimination. Clearly, this wasn’t the case at the time the law was enacted.
Some say that a ban on sex discrimination “require[s] unisex restrooms in public places.” “Emphatically not so,” according to a prominent feminist:
Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.
The author? Now-Justice Ruth Bader Ginsburg, writing in The Post on April 7, 1975, and explaining why the Equal Rights Amendment shouldn’t be opposed based on “the ‘potty issue.'” . . . Then-Professor Ginsburg’s argument would apply as much to Title IX or to the Civil Rights Act as it did to the Equal Rights Amendment.
Nor does the text provide support for the proposition that discrimination on the basis of sexual identity is prohibited. Title VII provides:
UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-2. [Section 703]
(a) Employer practices
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title IX provides, in relevant part:
Section 1681. Sex
(a) Prohibition against discrimination; exceptions. 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…
The argument can be, and is being, made that discrimination on the basis of sex means sexual identity, and thus includes transgender people within its scope. But the question is not should it, because you feel it should, but does it. The language is clearly against the government. The words “sexual identity” appear nowhere in the statute, were never anticipated to be covered by the prohibition, and have never been held to be included.
Moreover, as now-Justice Ginsburg made clear back in 1975, there was an affirmative disavowal that these laws were meant to have this effect. Then again, the Equal Employment Opportunity Commission, whose duty it is to implement Title VII, hasn’t been shy about extending its reach from the plain language of the law to areas far afield from its core. And under Chevron deference, courts are constrained to accept its “expertise” as to what the law prohibits.
Still, there is nothing to support the contention that either Titles VII or IX, as of now, cover discrimination based on sexual identity.
“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions,” Mr. McCrory, a Republican who is running for re-election this year, told reporters here. “Right now, the Obama administration is bypassing Congress by attempting to rewrite the law.”
Lynch’s arguments are revealing.
“They created state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security,” she said at a news conference in Washington. “None of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something or someone that they are not.”
Emotional hyperbole will certainly resonate with supporters, even if “none of us” may overstate the support. But this sounds far more like a plea for change than reliance on the law.
Straying from her usual understated, lawyerly tone, Ms. Lynch, a North Carolina native, grew impassioned as she likened the fight to earlier battles over Jim Crow laws and laws against same-sex marriage.
“This is not the first time that we have seen discriminatory responses to historic moments of progress,” she said. Addressing transgender people, she added: “We see you. We stand with you, and we will do everything we can to protect you going forward.”
Whether or not Lynch is on the right side of history, the question remains whether the executive branch of government, through the unilateral fiat of administrators, is sufficient to overcome the fact that neither Congress nor the Judiciary, the other two co-equal branches of government, have reached the same conclusion.
There is much to hash out in the determination of how rights are divvied up, whose prevail and who suffers. That’s a political battle, and one that is fought with tears rather than thoughts. But political battles are meant to be fought in Congress. Instead, the executive branch has decided to engage in social engineering without the benefit of law, because they believe it’s the right thing to do.
And because they’ve made this choice, the issue will be put to the court to decide whether laws that were never meant to cover transgender rights can be reinterpreted to do so, despite Congress having said nothing of the sort. If America wants to include the rights of transgender people in Titles VII and IX, it should happen by act of Congress, not by executive fiat or even judicial decree.
That said, I suspect AG Lynch will be sadly surprised when she’s told that her deepest feelings don’t constitute a basis for a radical change in law. Of course, by the time this is decided, appealed, and ultimately decided, she will be sitting in a corner office in a huge law firm making bundles of money, so she won’t be too sad. And she will be able to afford to pee any place she wants.
*Beyond the overarching question are myriad choices, each of which requires individual consideration. Simply saying that discrimination against transgenders is wrong fails to address the many permutations that arise from varying scenarios.
Assuming transgender discrimination to be wrong, the next level of issues to be decided is what will be the new rules of the game, how they will be enforced, and how to address the unintended consequences of the remedies. Is this to be decided by executive branch administrators, legislators or judges? And even when decided, will the next set of administrators get to revisit all decisions and recreate social rules in their image?