Lyle Denniston, the National Constitution Center's constitutional literacy expert, looks at the statutory path in the debate over transgender equality, which seems headed on a long-term road to the Supreme Court.
THE STATEMENTS AT ISSUE:
“The Department of Justice has for some time now made clear that sex discrimination includes discrimination against transgender people – that is, discrimination based on gender identity. That is consistent not only with the language of the statutes, but also with the legal interpretations adopted by federal courts – including the appellate court with jurisdiction over the state of North Carolina. There is nothing radical or even particularly unusual about the notion that the word ‘sex’ includes the concept of ‘gender.’”
– Excerpts from remarks on Monday by Vanita Gupta, head of the Justice Department’s Civil Rights Division, as she announced the filing of a federal government lawsuit against state officials and agencies in North Carolina, seeking to block enforcement of the state’s “HB 2” law regulating access to toilet and changing rooms for public employees and students. The lawsuit was filed in Winston-Salem.
“The Justice Department’s position is a baseless and blatant overreach. This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts. The overwhelming weight of legal authority recognizes that transgender status is not a protected class under [federal job rights law].”
– Excerpt from the text of a lawsuit that the governor and the state public safety director of North Carolina filed on Monday against the federal government and Justice Department officials, seeking a federal court ruling to make it definite and clear that existing federal civil rights protection does not apply to transgender people. The lawsuit was filed in Elizabeth City, N.C.
THE CURRENT STATE OF THE LAW ON THIS POINT IS….
The mandate that government should treat the sexes equally, especially in access to public benefits, can be traced to constitutional law and theory, and also to federal civil rights laws. But neither development has run its course yet, so it is an exaggeration to say that there is unanimity, in the courts or elsewhere, on when one’s sex, or gender, can be used to discriminate.
The constitutional origins of sex-based equality certainly go back at least to the 19th Amendment, in 1920, extending voting rights to women. However, equality did not become a broader civil rights requirement until a pioneering – though factually narrow – Supreme Court decision in 1971, giving women the equal right to handle a relative’s estate.
That decision, in the case of Reed v. Reed, was the first to apply the Constitution’s guarantee of the “equal protection of the laws” to achieve equality of the sexes as a general proposition.
In reality, because the proposed Equal Rights Amendment never was ratified, there is still not a full constitutional promise of equality of the sexes, because discrimination based on sex does not have to satisfy the toughest constitutional test, the way that race bias must.
Equality of the sexes has grown more rapidly, and more widely, through passage of laws by Congress. It is out of those laws that has sprung – but only in very recent years – the idea that sex equality actually can also mean “gender equality.” And that development has produced the current controversy over protecting “gender identity,” for transgender people. It is much too early, though, to say that its dimensions in federal civil rights law are clear or well established.
To digress for a moment: what is the difference between sex equality (the kind specifically promised in federal civil rights laws) and gender equality (not specifically mentioned in those laws)? The former basically depends upon biological characteristics, distinctly separating male from female. The latter depends upon an individual’s own internal sense, not gender at birth, of being male or female. Is the word “sex” in the federal anti-bias laws confined only to the former?
At this point, if transgender rights are to exist or to expand, they almost certainly will do so primarily through interpretations of federal civil rights laws, not through interpretations of equality guarantees in the Constitution. No court has yet ruled that transgender equality is in any way promised by the nation’s basic charter. And, with proponents of transgender rights having available at least an argument that the existing laws banning discrimination based on sex do, or should, protect transgender people, courts will largely steer themselves away from constitutional judgments.
There are three federal civil rights laws now figuring in the transgender rights movement. The federal government brought all three of those to bear on Monday when it sued state officials and agencies in North Carolina, to stop enforcement of a law that strictly limits the toilet and changing room facilities that transgender people may use in that state. The law, “HB 2,” mainly requires a transgender person to use a gender-designated facility for one born male or female, not based on an individual’s actual gender identity.
The three laws are Title VII of the 1964 Civil Rights Act, which bans workplace bias based upon sex, and two laws that ban sex bias in programs funded with federal tax dollars: Title IX of a federal educational benefits law passed in 1972, and a 2013 provision of the Violence Against Women Act. Individually, and taken together, those laws – according to Justice Department officials – definitely ban discrimination based on a transgender person’s “gender identity.” (The law that has been applied most expansively in that way is Title VII, primarily because of the energetic use of that law for the past four years by the federal Equal Employment Opportunity Commission in job bias cases.)
Hours before the federal lawsuit relying upon those laws was filed in one city in North Carolina, the governor and another top state official sued the federal government in another city.
For months, federal Justice Department officials have been arguing that there is a strong trend now running in federal court decisions in favor of transgender rights under those statutes, and that court rulings against those rights are now quite dated.
The state officials’ lawsuit argued that the federal government is seeking a “radical” expansion of civil rights law, without any change in the law by Congress. That lawsuit is aimed at getting a clear-cut ruling that only Congress has the authority to confer legal rights on transgender people, at the federal level.
Those lawsuits will go forward independently, at least for the time being, as will another challenge to “HB 2” that was filed in federal court in March. It may take some time, but the deep controversy over transgender equality no doubt will work its way up to the Supreme Court, from North Carolina or elsewhere. This is one of the hottest topics of the day on civil rights.
