On Monday, the fight for transgender rights in North Carolina reached a controversial and historic climax. The U.S. Department of Justice first took action last week, when they warned Gov. Pat McCrory and state officials that HB 2—the controversial “bathroom law” that has seen backlash from the LGBT community and allies nationwide—violates the Civil Rights Act. Instead of backing down, McCrory returned fire by filing a lawsuit against the federal government, claiming their position was a “radical reinterpretation” of civil rights.
The DOJ responded in kind with a lawsuit of their own, and the two parties are set to square off in what is likely to be a messy series of legal battles that will likely set a significant precedent for national transgender discrimination protections. This ongoing struggle for LGBT civil rights extends beyond North Carolina’s borders; HB 2 is, in fact, merely a symptom of widespread and systemic bigotry on the part of lawmakers and citizens across the country.
However, the standoff between North Carolina and the federal government remains at the forefront of the national consciousness: the DOJ’s suit, filed by Civil Rights Division head Vanita Gupta with the full support of Attorney General Loretta Lynch, claims that the state’s enforcement of HB 2 violates three federal laws: Title VII, which protects against workplace discrimination on the basis of sex; Title IX, which protects against sex discrimination in federally-funded educational institutions; and the Violence Against Women Reauthorization Act (VAWA), which “explicitly bars discrimination based on actual or perceived gender identity or sexual orientation.”
North Carolina’s grievance seeks to establish the state’s prerogative to enforce HB 2 in order to protect “bodily privacy rights,” insisting that the federal government’s injunction is a “radical reinterpretation” of the Civil Rights Act, as well as a “baseless and blatant overreach.” As CNN has pointed out, this battle seems to just be beginning, and may be fought at different levels over the next couple years until it reaches the Supreme Court.
The good news, at least, is that this doesn’t seem likely to be a fight that North Carolina wins. The Obama administration is clearly seeking to establish precedent here by coming down hard against anti-LGBT discrimination, with Attorney General Lynch comparing the draconian HB 2 to Jim Crow laws, delivering a rousing call to action in the name of universal civil rights. Furthermore, McCrory v. United States’s claim that the DOJ is “radically reinterpreting” Title VII is just patently incorrect.
While McCrory and company are right that the Civil Rights Act could more explicitly unilaterally protect discrimination on the basis of gender identity, the precedent for governmental recognition of transgender protections is there in Price Waterhouse v. Hopkins (1989), a Supreme Court decision cited by the Justice Department that included “sex-based consideration” as a factor in sex discrimination. The suit’s claim that HB 2 doesn’t violate VAWA is even more disingenuous. Not only does it demonstrate a tenuous understanding of the law (which, as noted above, specifically and explicitly protects gender identity), but also its conclusion of “accommodations based on special circumstances” basically amounts to “separate but equal.”
The state’s suit completely ignores the Title IX complaint – which is perhaps just as well, since last month the U.S. Court of Appeals for the Fourth Circuit ruled in favor of a transgender teen’s right to use the bathroom that matched his gender identity. This decision upholds the Obama administration’s position that “a school generally must treat transgender students consistent with their gender identity.” In other words, Gov. McCrory doesn’t have much of a leg to stand on with regard to Title IX. Even more interesting is the fact that, if and when these dueling lawsuits make it to the appeals courts, who should oversee the case but—you guessed it—the Fourth Circuit.
While this might seem encouraging, and should portend progress, this battlefield is wider and deeper than many realize. Civil rights protections are not just at stake in North Carolina, and while the eyes of the nation have focused on Gov. McCrory, similar fires have been cropping up around the country. In some states, overwhelming backlash has been extensive enough to sink or delay anti-LGBT legislation: for example, Georgia HB 757 was vetoed after major corporations (including Disney, whose Marvel Studios does much of its filming in Georgia) threatened boycotts.
Meanwhile, discriminatory laws (often Religious Freedom Restoration Acts or amendments to existing religious freedom ordinances) have been failing around the country: Colorado HB 16-1160 was “postponed indefinitely”; South Dakota HB 1008 and Wisconsin AB 469 were trans-targeted “bathroom bills” that fell apart in March and April; and, perhaps most encouragingly, West Virginia HB 4012 was rejected by the state senate explicitly on the basis of its anti-LGBT provisions.
However, anti-LGBT legislation is only multiplying. Perhaps the most well-known (and notorious) of these “other bills” is Mississippi HB 1523, the “Religious Liberty Accommodations Act,” which was signed by Gov. Phil Bryant last month, and will go into effect on July 1st. That same day, Kansas’s recently-passed SB 175 will kick in, legalizing discrimination by student groups based on “sincerely held religious beliefs.” Tennessee just passed HB 1840/SB 1556, which allows counselors and therapists to deny services on the basis of religious belief.
The list goes on. Last year, Arkansas SB 202 refused the right to pass non-discrimination protections on the basis of sexual orientation and gender identity. Though it’s been a law for over a year, it’s received little attention: while Cher has done her part, the Clintons, despite their Arkansas ties, have remained curiously silent. Even Mississippi HB 1523, was name-checked, but mostly ignored in GLAD’s letter urging Attorney General Lynch to take action a few weeks ago. Some have argued that Mississippi HB 1523 is even more dangerous than HB 2, but despite an active ACLU lawsuit, it’s mostly been ignored by the national media. All of the focus has been on North Carolina, to the great detriment of the many other states facing similar antediluvian legislation.
To wit, this is only a small sample of discriminatory legislation, and so far, we’ve only discussed the laws that have already been passed. According to the HRC, there were over 115 different anti-LGBT laws introduced in 2015, and despite some victories on this front so far this year, Republican lawmakers across the country have showed few signs of slowing down. Tennessee, not content to merely endanger the mental health of LGBT people, is considering its own “bathroom bill,” as well as rigid legal definitions of “husband,” “wife,” “male,” and “female.”
Missouri is frantically scraping to put bathroom gender restrictions in place, with threeseparatebills proposed to amend the same statute, as well as a separate law to ensure that the entire state complies with these measures. Neighboring Kansas introduced twinbills that would entitle students who find and report trans bathroom-users $2,500, plus “monetary damages for all psychological, emotional and physical harm.” Meanwhile, Kentucky HB 364 tried to raise the stakes in February by melodramatically declaring the issue of trans bathroom use “an emergency.” However, it might be Oklahoma who deserves utmost condemnation, for introducing a record 27 separate anti-LGBT bills this year—all of which were defeated.
It would be fallacious to classify this new wave of anti-trans discrimination as the purview of the South, where Bible Belt conservatives reign supreme. Consider HB 2-like “bathroom bills” in Illinois (HB 4474), Minnesota (HF 4496), and South Dakota (HB 1112), as well as fourseparatebills in Washington, including the “Washington Gender Privacy Protection Act,” which goes so far as to attempt to legislate bathroom privileges on the basis of “male” and “female” DNA (leading me to question whether or not Reps. Dent and Klippert are even aware of the existence of intersex people, and are just desperate to ground their gender-binarist bigotry in science). Even California, with its liberal reputation, tried to pass a law (AB 1212) empowering discriminatory student groups.
One particularly regressive bill, South Dakota HB 1107, facilitates discrimination not just against trans people and same-sex couples, but anyone who engages in non-marital sexual activity. There’s even more intolerance coming down the pipeline: Michigan State Senator Tom Casperson, seemingly unthreatened by The Boss, plans to introduce “common-sense” bathroom legislation in the coming months. Meanwhile, with the support of the Alliance Defending Freedom, a conservative coalition of lawyers who have been helping draft and enact anti-LGBT legislation, more states and municipalities will no doubt continue to introduce new bills, even as the brouhaha about North Carolina eventually dies down. This list doesn’t even really cover RFRAs, which, without adequate, explicit ordinances protecting LGBT people, could be used to allow businesses to discriminate on the basis of orientation and gender identity.
Lest I be accused of fearmongering, I’m happy to admit that not all of this legislation is active, as several state congresses have already concluded their sessions. However, many of these proposed bills are merely tabled, and could very well rear their ugly again in the future; how they materialize will depend greatly on the specific state’s decisions and procedures, as well as any precedents set by the McCrory v. United States fallout. That being said, there’s still clearly quite a fight ahead of us before civil rights for all people on the queer and trans spectrums are protected nationwide. There are more of these laws across the country than can possibly be tracked down – the more you look, the more will keep popping up. Commonly-cited estimates that there are “over 100” pieces of anti-LGBT legislation in action right now are difficult to validate; nevertheless, the efforts of organizations that track the progress and status of these laws are indispensable, including the ACLU, the National Center for Transgender Equality, and GLAD.
For those invested in the fight for equality, complacency in the face of the DOJ’s involvement is an anathema to progress; while the federal government asserting their stance is a huge step forward, the fact remains that many citizens across the country refuse to accept that trans people are, in fact, people. I fully admit that the fact that this monumental civil rights battle is being fought over bathrooms, of all things, seems pretty preposterous. Even so, there’s still plenty of work to be done. As Attorney General Lynch encouraged, “It may not be easy—but we’ll get there together.”