Sean Erenstoft: I have waited a week before blogging about North Carolina’s continuing foray into discrimination. . . this time against gender discrimination. This article by Robert A. Sedler sums up my position. At the outset, my readers should be reminded that the North Carolina legislature can point to no significant incidence of bathroom assaults to justify this emergency legislation. Instead, like the curtailment of voting rights aimed against poor minorities, this law seeks to disenfranchise yet another facet of our culture. This time it’s the transgender community.
Indeed, the U.S. Court of Appeals for the 4th Circuit (whose jurisdiction includes North Carolina) has adopted the position that transgender individuals should have access to the bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex. This position comports with even the most cursory reading of the 5th and 14th Amendments to the Constitution. And given the 4-4 split on the Supreme Court, it is likely that even a “tie” would render the North Carolina law unconstitutional. So why would North Carolina take on the Obama administration? Voter turn-out problems? I’m guessing that the effort is a concerted effort to turn out the G.O.P. base.
“We live under a constitution and the rule of law. Throughout the nation’s history, we have relied on the Constitution to protect individual rights and to prevent discrimination against people and groups because of who they are. The Supreme Court has held that the Constitution prevents the government from engaging in discrimination based on race, discrimination based on gender, discrimination against children born out of wedlock and more recently, discrimination on the basis of sexual orientation.
Just last year, in a series of cases, including the Michigan case of DeBoer v. Snyder, the court held that the Constitution protects the fundamental right of same-sex persons to enter into the institution of marriage. The court reasoned that the ban on marriage for same-sex couples caused serious harm to these couples and their children and that the state had no valid reason for denying same-sex couples the right to marry.
But no sooner does the Supreme Court strike down one form of discrimination than another form of discrimination emerges. The animus of discrimination today is directed against people asserting a right to a gender identity that is different from their gender at birth. It is my submission that the Constitution should protect the right of all persons to determine their own gender identity, and that the government cannot constitutionally discriminate against people because of their present gender identity.
Just as discrimination on the basis of race, gender and sexual orientation has taken various forms, so does discrimination on the basis of gender identity. One of the most pernicious forms of this discrimination is the new North Carolina law that requires people to use the public restroom for the gender listed on their birth certificate even though they now identify with the opposite gender.
Obviously the law is unenforceable. The state will not post guards at public restrooms to inspect the genitals of people going into the restroom. But the enactment of the law is intended to demean transgender people in the same manner as laws in southern states once demeaned African Americans by prohibiting “colored men” from going into restrooms for “white gentlemen” and prohibiting “colored women” from going into restrooms for “white ladies.” The denigration of transgender persons is aggravated by the state’s totally preposterous claim that the law is necessary to prevent “sexual predators” from going into women’s restrooms.
The Supreme Court has stated that, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter,” and that, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Surely, this realm of personal liberty must include the right of all persons to determine their own gender identity, and to be free from all forms of governmental discrimination because of their gender identity.”