Explaining bathroom bills, transgender rights, and equal protection

source: http://blog.constitutioncenter.org/2016/05/explaining-bathroom-bills-transgender-rights-and-equal-protection/

Public bathrooms have become the latest frontier in the LGBT rights movement. At least a dozen states, including North Carolina, have passed laws removing anti-discrimination protections for LGBT people; and some include “bathroom bills” requiring that the bathrooms a person uses is determined by his or her biological gender at birth.

LGBT and liberal groups like the ACLU have decried these laws as discriminatory against transgendered persons, while conservative groups have voiced support for these laws as protecting privacy rights. These measures implicate important equal protection issues under the Constitution as well as federal laws like Title VII and Title IX that prohibit discrimination on the basis of sex.

For instance, on May 4, the Justice Department’s Civil Rights Division wrote a letter to North Carolina advising Governor McCrory that its law, HB-2, violated civil rights laws including Title VII, and that the state had until Monday to abandon the measure or else risk losing federal funding.

On May 9, North Carolina and the Justice Department filed “dueling lawsuits” over HB-2, with each filing a complaint against the other only several hours apart. In the suit against DOJ, Gov. McCrory and Secretary of Public Safety Frank Perry on behalf of North Carolina accused the federal government of “baseless and blatant overreach” in “an attempt to unilaterally rewrite long-established federal civil rights law in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.”

Meanwhile, DOJ’s suit against North Carolina—which also names the state’s department of public safety, and the University of North Carolina and the school’s board of governors—argues that the measure is discriminatory and violates civil rights laws including Title VII, Title IX, and the Violence Against Women Reauthorization Act (VAWA). Gov. McCrory insists that the lawsuit was filed to seek clarity on the issue, while Attorney General Loretta Lynch says that no clarification on federal civil rights laws is needed.

The Grimm Ruling

The fight over bathroom use and LGBT rights has been playing out at the local level as well, in public schools throughout the country. The Fourth Circuit recently handed down an important ruling on this issue in Grimm v. Gloucester Country School Board, a case concerning a boy’s right to use the boys’ restroom.

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