April 13, 2016: North Carolina recently became the first U.S. state to mandate discrimination against transgender people by statute, banning them from using bathrooms and locker rooms that align with their gender identity in government buildings and schools. The new law also guts protections for lesbian, gay, bisexual and transgender people in Charlotte and nine other municipalities.
This move and similar ones in other states are terrible signals of intolerance, but beyond that they make absolutely no sense. North Carolina started feeling an economic backlash so quickly that Gov. Pat McCrory signed an executive order Tuesday in an attempt to soften the message sent by the law, though the order has little impact on the law itself.
Then there’s McCrory’s reason for overriding the municipal ordinances — that the city of Charlotte committed “government overreach and intrusion” by saying transgender customers of private businesses had the right to use whatever restroom seemed appropriate. That is in one sense a demand on those businesses. But looked at another way, McCrory was suggesting that Charlotte had overstepped its governmental role by reducing restrictions on restroom use. If this seems illogical to you, join the club.
What makes state laws like these even more irrational is that transgender people are currently protected by federal law. They are protected in their use of gender-conforming bathrooms in schools by Title IX of the Education Amendments of 1972. The Occupational Safety and Health Act and Title VII of the Civil Rights Act of 1964 have been interpreted to cover gender-appropriate restrooms in the workplace. There are constitutional provisions requiring equal protection of the law and a due process right to privacy that apply to state laws restricting access to public accommodations. And the Affordable Care Act protects people in medical facilities.
Even so, 44 bills targeting the LGBT community were introduced in state legislatures in the first three months of 2016. The Republican National Committee has called for these actions. These statewide attempts to make an end run around federal law, using irrational fear-mongering to vilify an already vulnerable population, have already resulted in a federal lawsuit in North Carolina.
There will be no shortage of experts available to testify for the plaintiffs. The scientific data regarding transgender identity are becoming quite clear. I wouldn’t be surprised to see the federal Department of Justice weighing in at some point. It already has done so in a number of cases against state governments that have taken the position that federal law doesn’t protect transgender people. Other agencies are reviewing whether violations of federal law would require cutting billions in funding to North Carolina.
The Equal Employment Opportunity Commission was my partner in a recent case against Deluxe Financial Services in Minnesota federal court. The result was a public consent decree filed in federal court in which Deluxe agreed to make an apology to Britney Austin, change its internal policies, and pay our client for the emotional distress she had to endure. A recent case against Lakeland Eye Clinic, which I litigated in Florida federal court with the EEOC on behalf of Brandi Branson, also resulted in a public consent decree.
So many federal courts have specifically held that federal laws prohibiting sex discrimination also include sex discrimination against transgender people that such protections should be considered a given. For example, just this year, the U.S. Court of Appeals for the 11th Circuit, covering Georgia, Florida and Alabama, ruled in favor of my client Jennifer Chavez, reiterating that sex discrimination includes discrimination against a transgender person for gender non-conformity.
I have personally handled about 30 cases of transgender discrimination in the past several years, and I can say with confidence that the dire consequences predicted by the opponents of equality have not come to pass in any U.S. jurisdiction. The reasoning of the legislators behind the push to target transgender people defies logic. They are crusading against a tiny minority that poses no real threat. They have invited costly federal litigation at a time when there isn’t a budget for such adventures. Most important, they are making businesses hesitant to align themselves with states and politicians that have declared themselves to be backwaters, afraid of a changing world.
Jillian T. Weiss, a professor of law and society at Ramapo College of New Jersey and founder of a firm that represents transgender people who have experienced discrimination, is executive director of the National Transgender Bar Association now in formation.
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