North Carolina’s so-called “bathroom bill,” which requires people to use bathrooms matching the sex on their birth certificates, has resulted in a political firestorm. But while conservatives remain divided on the issue and businesses rush to the defense of the transgender community, we should stop to ask: How do we deal with gender identity discrimination as a civil rights issue under the law?
The North Carolina law was passed in response to a local ordinance adopted by the city of Charlotte, N.C., which banned discrimination against gay, lesbian and transgender people. Similar legislation has popped up in a number of cities and states across the country, igniting backlash from social conservatives who resist the shifting of traditional beliefs around gender and sexuality, especially in schools.
The issue isn’t just isolated to bathroom access. Proposed gender identity and sexual orientation nondiscrimination laws extend to a range of areas, including employment discrimination, participation on sports teams, family leave laws, adoption regulations and health-care policies.
Critics argue that the ordinances would be abused. More legal protections could mean more frivolous and expensive lawsuits, and the fuzziness of the term “gender identity” (Facebook, for instance, offers more than 50 ways to identify one’s gender) makes it unclear exactly what would amount to discrimination. For example, would refusing to use a transgender person’s preferred pronoun be discrimination?
Currently, only 22 states and the District of Columbia protect people from private discrimination by sexual orientation. Twenty specifically expand those protections to gender identity. Federal civil rights law does not explicitly cover sexual orientation nor gender identity in cases of private discrimination, although the Obama administration has pushed to protect transgender federal employees and students as a form of sex discrimination through the Equal Employment Opportunity Commission and the Justice Department.
Of course, our legal system clearly does allow for segregation based on biological sex. Bathrooms aren’t the only places where men and women are legally separated; such segregation is allowed in sports teams, prisons, hospitals, college housing and military service. The law also explicitly allows for groups to admit people solely based on sex — such as sororities and fraternities; all-male and all-female schools; and service organizations such as the Boy Scouts and Girl Scouts. So where do transgender people fit in? How should transgender people — who may be in different stages of transition — be identified under the law?
None of this is to say that expanding antidiscrimination protections to transgender people is impossible. It’s simply very much unsettled and will probably take years and countless lawsuits to sort out.
That is, unless our lawmakers decide to take action and pass something like the proposed Equality Act, which could spell out the answers to some of the tough questions: Should the federal government legally define “transgender” or “gender identity,” and if so, how? Where do we draw the line for what constitutes discrimination? Are these questions of discrimination based on sex, sexual orientation or something else entirely?
Over the next few days, we’ll hear from: