The United States Justice Department has now capitulated to the demands of activists in striking down a state law by interpreting the protections of people on the basis of “sex” in a 1960s civil rights act to apply to gender identity. This move threatens to remove millions of dollars in federal education funding.
In a letter to North Carolina Governor Pat McCrory on Wednesday, the Justice Department declared that House Bill 2 violates the Civil Rights Act of 1964 by institutionalizing discrimination on the basis of sex in public schools. The letter gives North Carolina officials until Monday to say they will not enforce the law, otherwise the state could lose federal funding for education (North Carolina received $861 million in federal funding during the current school year, and is slated to receive $4.5 billion next year).
Vanita Gupta, principal deputy assistant attorney general, sent the letter to McCrory, laying out her case in no uncertain terms.
Specifically, the State is engaging in a pattern or practice of discrimination against transgender state employees and both you, in your official capacity, and the State are engaging in a pattern or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies.
Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition, or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII.
There you have it — the federal protection against discrimination “on the basis of sex” extends to gender identity. Biological sex, clearly what the act meant to those drafting it, must be passed over in favor of gender identity.
By ruling in this way, Gupta and the Department of Justice have made this a federal issue. They have also capitulated to the demands of transgender activists.
Last Thursday, five LGBT groups sent a letter to U.S. Attorney General Loretta Lynch, arguing that the administration should threaten to remove education funding from North Carolina following H.B.2. Five groups — the American Civil Liberties Union, LGBTQ Legal Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and Transgender Law Center — signed the letter.
“In the face of such a categorical violation of federal sex discrimination laws, the normal remedial process of filing complaints with federal civil rights agencies … is wholly insufficient,” the activists argued. They claimed the Obama administration should take definitive action — and it waited less than a week before following their orders. The Obama administration gave North Carolina even less time to shape up.
Ironically, the North Carolina bathroom bill is neither absurd nor radical (the liberal city of Houston, Texas, passed a similar bill just last year), and emphatically does not discriminate on the basis of sex. The law states that school restrooms and locker rooms which are not single-occupancy must be single-sex, and that students can only use the facility that matches their biological sex as stated on their birth certificate. H.B.2 also declares that “limiting bathrooms according to biological sex is not considered discrimination.”
The big issue is a confusion between basic terms, like “sex” and “gender.”
Next Page: Why the Justice Department and the LGBT groups are flat-out wrong, based on the meaning of words.
Let’s clarify a few terms here, so the Justice Department can understand. “Sex” or “biological sex” refers to a human being’s chromosomal makeup. People we call “males” have one “x” chromosome and one “y” chromosome. People we call “females” have two “x” chromosomes. “Gender,” by contrast, deals more specifically with identity, and extends to the categories of “transgender” — i.e. identifying with the gender opposite your biological sex — and “cisgender” — identifying with the gender that fits your biological sex.
Discrimination on the basis of sex means having a double standard between the biological sexes. It means, for example, not accepting men but accepting women, or forcing women to perform tasks that would not be required of men. This is unfair, and it was outlawed in the Civil Rights Act of 1964.
What these LGBT groups are complaining about is alleged discrimination on the basis of gender, or more accurately on the basis of transgenderism. They complain that male students and employees who identify as feminine should be accepted by the society as women. This is an interesting argument, but the Civil Rights Act of 1964 has nothing to do with it.
H.B.2 was written to protect the privacy of the vast majority of biological men and women who prefer to use restrooms dedicated only to their biological sex. Some parents are concerned about the safety of their children (mostly girls using restrooms that could be shared by men). The law only applies to restrooms with multiple stalls, so there’s a very easy work-around for transgender people (who are a very small segment of the population): make single-serve restrooms that are gender neutral.
Meanwhile, Target responded to the law by publicly opening its restrooms to those who identify as transgender. Since the statement last month, the retailer’s stock has dropped and more than 1 million people have signed a pledge that they will not shop there.
Nevertheless, the Justice Department has merely declared from on high that this state law is illegal. Furthermore, the department went outside normal channels to do so, and used a very tenuous 1960s law that clearly was not written with transgender people in mind. Whoops! Missed that one.
It is absurd to think that we are beating each other up about bathroom laws when a clear solution is available (single-stall gender neutral restrooms, anyone?), and when a presidential candidate might have violated federal privacy law. Maybe the Justice Department should look into the Clinton email scandal rather than the bathroom laws of one particular state.