By Eliott C. McLaughlin
Get ready for a likely U.S. Supreme Court showdown over North Carolina’s so-called bathroom law. Nobody is sure when, but it’s probably coming.
The state sued the feds Monday, and the federal government quickly returned the favor, staging a fight over the law that would require North Carolinians to use public bathrooms that correspond with their biological sex.
There are reasons scholars and attorneys don’t expect the federal lawsuits to bring a swift resolution. Let’s look at a few:
1. There is conflicting case law — as evidenced by the cases cited in this week’s lawsuits. While federal courts have ruled previously on transgender rights, those rulings sit at opposite ends and span multiple court circuits, according to Danielle McLaughlin, a New York-based government investigations attorney and constitutional law blogger.
The likelihood of the Supreme Court stepping in will spike in the event that federal appeals courts begin to butt heads, too, she said. 2. The issue pits North Carolina Gov. Pat McCrory and those who believe the law is about “bodily privacy” against President Barack Obama’s Justice Department and those who believe the law discriminates against a class of people.
Neither side is expected to accept a lower court decision that doesn’t jibe with its stance. McCrory has repeatedly expressed his intent to keep the law intact, but “there are no questions here as to the direction of the Department of Justice and the resources it wants to put toward fighting discrimination,” McLaughlin said.
3. To quote Bob Dylan, the times they are a-changin’. Opinions are evolving when it comes to transgender rights, creating a rift among the public. Look no further than the split highlighted in a CNN/ORC poll this week that showed 57 percent of people opposed laws that forced transgender folks to use bathrooms that correspond with their birth certificates rather than gender identities.
“This is an important issue that people are interested in. The (Supreme Court) isn’t going to want to have conflict on this issue for very long,” said Katharine Bartlett, a Duke University law professor and former dean at the school.
So with those thoughts in mind, there remain many questions about how the issue might play out, but ultimately, if the Supreme Court steps in, justices would be charged with deciding whether transgender individuals are protected under federal law.
The Equal Employment Opportunity Commission has been clear that discrimination against transgender people is tantamount to sex discrimination, but that relates only to Title VII of the Civil Rights Act, which deals with employment discrimination.
In its lawsuit, the Justice Department also alleges violations of Title IX of the Civil Rights Act, which addresses discrimination in schools, the Education Act and the Violence Against Women Reauthorization Act.
Which court is handling all this now?
There’s a little confusion here. McCrory and his public safety director sued the Justice Department in U.S. District Court for the Eastern District of North Carolina’s Western Division. That’s also where state House Speaker Tim Moore and Senate President Pro Tem Phil Berger filed a separate suit against the Justice Department.
The Justice Department filed its case in U.S. District Court for the Middle District of North Carolina.
The two courts could take up the cases and decide them separately, and if their rulings conflicted, it would spur a decision from the 4th U.S. Circuit Court of Appeals. North Carolina would have to abide by the appellate ruling until the high court stepped in, Bartlett said.
However, she points out, there’s another option: consolidating the cases.
But the federal Manual for Complex Litigation says, “Plaintiffs’ choice of forum is … entitled to substantial deference.”
Why is public opinion so important?
The recent CNN/ORC poll indicated that just 5 percent of those polled had no opinion on the issue, and 38 percent were in favor of making transgender people use the bathroom consistent with their birth certificates. So, while there is a significant divide over the issue, most everyone has an opinion.
Also, the shift in opinion, much like that on same-sex marriage, comes from a growing understanding of issues facing the transgender community, Bartlett said. Where people didn’t understand, felt threatened or were content to ignore the matter before, now “there is a greater societal understanding of the phenomenon and acceptance of it,” she said. That’s true for all members of the lesbian, gay, bisexual and transgender community, she said.
Those fighting to expand transgender rights have taken a page from activists who pushed for gay and abortion rights, McLaughlin said. That page says: Put the issue out there and force a discussion.
“The way to make change is to come out of the shadows and have a conversation on a national stage and not be apologetic about what they’re seeking,” she said. “Groups seek to change the interpretation of statutory language file complaints, and hope that ultimately the Supreme Court will hear their case, or another like it, and agree the statutory interpretation should be changed.”
Is this just about North Carolina?
Not at all. McCrory has repeatedly said that what happens in North Carolina will have national ramifications. And as the polls and slew of state religious freedom bills show, McCrory and his supporters are hardly the only ones interested in pursuing this type of legislation.
What both sides are requesting, essentially, is “Please interpret these statutes for us. We want clarity. We think we’re right,” McLaughlin said.
For now, the issue may seem like it solely pertains to North Carolina, but in the likelihood that the 4th Circuit issues a ruling — and then another federal appellate court reaches a conflicting conclusion — the Supreme Court will more than likely step in. It’s likely neither the Justice Department nor North Carolina would settle for anything less.
“Either side would want to take this all the way to the Supreme Court,” McLaughlin said. “It’s an emerging issue of national importance.”
Which way will it go?
McLaughlin feels the Obama administration’s refusal to defend the Defense of Marriage Act serves as “a harbinger of a broader acknowledgment of the rights of Americans and what our rights actually look like,” and DOMA is a similar animal.
North Carolina’s law will most likely be left to the Supreme Court. It could take two years or more for the court to decide the issue, McLaughlin said. And with a presidential election in the balance, the leanings of a new, ninth justice will be unknown.
Bartlett points out the court may take into consideration that North Carolina’s law is an aggressive statute that was passed swiftly with little legislative debate or public input.
From her perch, Bartlett said, it seems that “if transgender discrimination is sex discrimination under Title VII (of the Civil Rights Act), there’s no reason it shouldn’t be under Title IX.”
Also, she said, if a state strives to apply laws targeting only those who have changed their gender or are in the process of changing their gender, “it’s hard to say that is anything but discrimination based on their sex.”
So this is similar to DOMA or Jim Crow?
Not really, but kind of.
DOMA mandated that marriage was between only one man and one woman before the Obama administration said it would no longer defend it, and the Supreme Court ultimately struck down a key part of it. U.S. Attorney General Loretta Lynch has likened North Carolina’s act to Jim Crow laws under segregation and cast it as a discriminatory response to progress, but the courts have long had a lower tolerance for racial discrimination than other types of discrimination, McLaughlin said.
You may be asking: The courts assign levels to discrimination? Absolutely. Can women be drafted into the military? Are rich people treated differently than poor people in the tax code? Aren’t single individuals taxed differently than married ones? Were you allowed to drive before you were 16? Booze before 21? Can you collect Social Security before you’re in your 60s?
“Courts have different tests depending on the nature of the discrimination,” McLaughlin said.
What will be key is whether the courts feel the characteristics being discriminated against are immutable, such as a person’s skin color.
Lynch is well aware of this, as the Justice Department wrote in its lawsuit, “Gender identity is innate and external efforts to change a person’s gender identity can be harmful to the person’s health and well-being.”
Needless to say, if and when the Supreme Court makes a decision, it will be a landmark one that will change the face of transgender rights no matter which way it rules. If it sides with North Carolina, expect other states to push similar legislation. If it sides with the Justice Department, expect dominoes to fall, as they did with DOMA.
“What the DOJ and EEOC are doing is working to obtain law change — they want federal district courts to broaden the definition of ‘sex’ discrimination to specifically encompass these groups,” McLaughlin said.
“The Supreme Court will have the final say on it, should it decide to take up a transgender case like this.”