The state of North Carolina has effectively been warned by the Department of Justice to back down from banning transgender people from certain bathrooms, or unpleasant things will ensue. The letter that Republican Governor Pat McCrory received from the Federal agency on Wednesday demanded a response by close of business on Monday. If he does not do what the Justice Department asks, the state could be slapped with a lawsuit, and potentially denied millions in Federal funds. While it’s unlikely, this could also be the beginning of a historic precedent being set.Rico says he feels for the transgendered (Rico has a friend whose daughter became a boy, sort of), but this is gonna get ugly...
At issue is HB2, a law that state legislators called a special session to pass in March of 2016, which mandates that state residents must use the public bathrooms that match their “biological sex”, defined as the sex on their birth certificate. Lawmakers crafted the measure in response to the state’s largest city, Charlotte, passing local LGBT non-discrimination protections that, among other things, affirmed the right of transgender men and women to use the bathrooms that match their gender identity.
In the letter, the Justice Department alleges that this law violates Federal civil rights protections, because discriminating against transgender people is a form of sex discrimination. The bulk of the letter concentrates on the treatment of state employees. The argument is this: if the state allows “non-transgender” employees to use the sex-segregated bathrooms that align with their gender identity, but denies that right to transgender employees, then the latter are not receiving full and equal access to bathrooms, and that’s sex discrimination. The letter demands that the state cease implementation of the law.
A Justice Department official told Time that it hopes North Carolina will comply with Federal law, but that the department is prepared to use tools at its disposal to compel the state to comply if necessary.
North Carolina House Speaker Tim Moore, a proponent of the law, said that state lawmakers will not meet the deadline that the Department of Justice laid out. “We will take no action by Monday,” Moore told reporters, in remarks reported by the Charlotte Observer. “That deadline will come and go. We don’t ever want to lose any money, but we’re not going to get bullied by the Obama administration to take action prior to Monday’s date. That’s not how this works.”
The Department goes on to quote a 2015 ruling from the Federal Equal Employment Opportunity Commission, which found that the Army discriminated against a transgender civilian employee in denying her access to the women’s room after she transitioned on the job. The EEOC said bathroom access is “a significant, basic condition of employment” under Title VII of the Civil Rights Act.
Several other rulings, including one in North Carolina’s own Fourth Circuit, have similarly found that denying transgender people such bathroom access is a form of sex discrimination. Under President Obama, the Department of Justice has repeatedly said that transgender people are protected by long-standing bans on sex discrimination, and the Department of Education has issued similar guidance. (Sexual orientation hasn’t found such robust protection under those bans, one of the few ways in which transgender Americans have made more legal progress than their lesbian, gay, and bisexual peers.)
It isn’t that unusual for the Department of Justice to send out a warning shot like this, former government civil rights enforcers say. What is unusual is that there are no complicated questions about the facts in this case, no particular instances to be fleshed out. “According to the Department, the way this law is written, the only way it can be enforced is by discriminating,” says University of San Francisco law school dean John Trasviña, a former assistant secretary for fair housing and equal opportunity in the Department of Housing and Urban Development. “The vast majority of such cases always typically settle,” he adds. “But this is one where you can’t really compromise.”
So what happens next? The simplest outcome is that McCrory complies, finally caving to this last increase in pressure after already losing millions in economic activity as hundreds of businesses and public figures have come out against the law. “If the governor comes back and says ‘No,’ this letter means the Department is prepared to file a lawsuit,” says William Yeomans, an American University law professor who spent nearly thirty years working on civil rights cases at the Justice Department.
If that lawsuit were filed in North Carolina, the state should be prepared to lose on the first go-round, given the precedent that’s already been set by the Fourth Circuit. Should both sides dig their heels in and appeal to the Supreme Court and, should the court take the case up, it could set a precedent that all courts must interpret laws banning sex discrimination as also banning unequal treatment based on gender identity. That could give transgender rights advocates protections they have sought for decades. On the other hand, the Supreme Court could rule against that interpretation of the law, particularly if presumptive Republican presidential nominee Donald Trump wins the 2016 election and has the chance to install a fifth conservative to what is currently a split court.
The BBC has an article on the subject:
The Obama administration has told schools to let transgender pupils use toilets matching their gender identity. Attorney General Loretta Lynch said schools that don't comply may face lawsuits or lose Federal aid if they do not comply.Rico says he wonders how the Secret Service will handle a transgender user of a toilet in the White House... (And Rico says we should just make all damn bathrooms single-user and solve the problem.)
One senior Republican politician has condemned the move as the "beginning of the end" of the current school system. In a separate move, Obama also strengthened protections for LGBT people receiving health care.
The Federal government is fighting the state of North Carolina in court over a law requiring people to use toilets according to their gender at birth. However, the Obama administration Education and Justice departments say public schools must respect transgender pupils' gender identity, even if their education records or identity documents indicate a different sex. "There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," Lynch said.
No comments:
Post a Comment