Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and director of the Program in Family Law and Policy at the University of Illinois College of Law. Wilson, who recently helped Utah state lawmakers pass anti-discrimination legislation that balances religious liberty and LGBT rights, spoke with News Bureau business and law editor Phil Ciciora about North Carolina’s controversial new law that limits a transgender person’s bathroom access to the gender listed on their birth certificate.
What is the impetus for this law? Can it be seen as little more than an election-year stunt to rile up a certain segment of voters?
Maybe so, but if that was Governor McCory’s plan, it has backfired wildly on him.
Until recently, this was largely a nonissue. Transgender people have existed in minuscule numbers – less than one-third of a percent in California, and likely even fewer in states like North Carolina – without issues over access to public bathrooms arising.
One cynical view is that North Carolina legislators reacted to the city of Charlotte’s efforts at inclusivity to create a wedge issue. Ironically, the law is going to end up making the very people who are unnerved by all this social change even more unnerved by trying to hyper-regulate it. For example, a transgender man – that is, someone born female but who has transitioned to a man – would be forced to use the women’s restroom under this law, when at one time this person would have used the men’s room and no one would have ever paused over it.
Other states have recognized the bathroom issue for the nonissue that it is. Last year, for example, Utah extended protections against discrimination in housing and hiring for all LGBT persons. The Utah Legislature gave employers the discretion to adopt reasonable policies around facilities, like bathrooms, and have seen no real issues since. The South Dakota Legislature passed a law similar to North Carolina’s, but South Dakota’s governor rightly vetoed it.
How do you enforce public bathroom access based on someone’s birth certificate?
Unless you have a police officer standing outside every public restroom, like a bouncer, ready to examine everyone’s birth certificate, you can’t enforce this law as it is currently written. The law is untenable.
And what if you have a man who looks effeminate? Or a woman who looks particularly masculine? The measure needlessly encourages others to police how someone else looks – basically, to engage in sex stereotyping – to decide whether someone can use a certain restroom.
The law also covers public universities in North Carolina. How does Title IX factor into this?
The Title IX statute prohibits any sex discrimination by schools receiving certain federal funds, including public schools. The Department of Education interprets the word “sex” to mean sexual orientation and gender identity. Because the Department of Education has rule-making authority under Title IX, its policy decisions are given significant deference in court.
North Carolina may argue that it is not violating Title IX since no dispositive Supreme Court decision has, to date, said “sex” in Title IX encompasses gender identity. Here, the state faces a second key hurdle to keeping Title IX funds after this law. The 4th U.S. Circuit Court of Appeals, which encompasses North Carolina, recently ruled that a trial court should reconsider its decision to reject a transgender boy’s request for a preliminary injunction against Gloucester High School in Virginia, which had limited the teen’s bathroom use to the girl’s restroom. In other words, the transgender teen can continue to litigate on the merits. If the 4th Circuit had interpreted Title IX to exclude gender identity claims, his suit would not have gone forward.
Contrast that result with the latitude that private, religiously affiliated schools receive under Title IX. Title IX gives a very robust exemption to religious universities to follow their religious tenets, which might permit them to have faith-driven policies on questions of facilities, such as around modesty.
In the end, the federal money that North Carolina receives will likely be the tipping point for resolving this issue. North Carolina, like other states, receives significant federal funds that are contingent upon its adherence to a duty not to discriminate against students based on sex. If courts side with the Department of Education, the choice facing North Carolina will be to follow the rules attached to those funds or forego the funds entirely.
But what about the states’ rights argument? Is the federal government overreaching?
The states’ rights argument is a nice rhetorical move, but North Carolina is saying to the federal government, “You can’t enforce Title IX against us.” But as long as North Carolina accepts federal money, the federal government can, indeed, enforce Title IX and every other federal law and regulation in North Carolina.
And that brings us back to the fight over what Title IX even covers. North Carolina could argue that it doesn’t believe that the statute says what the federal government and the Obama administration purport it to say. This is where deference comes into play and the headwinds for North Carolina start to blow. In court, the federal government gets a thumb on the scale for its interpretation; North Carolina doesn’t.
How do you foresee this controversy ending?
I hold out hope that the North Carolina Legislature will try to repeal the law, but I imagine that would not come until after all the election-year politics dies down.
North Carolina has boxed itself in by transforming a nonissue into a culture war. The governor may be buying time because litigation is slow, meaning that very little will occur until after the election. The North Carolina Legislature could do away with it. The bottom line is that North Carolina didn’t need to do this. There wasn’t anything North Carolinians needed to be protected from.