Here is the complaint that the Justice Department filed yesterday in federal district court against the State of North Carolina, the University of North Carolina, and the State Department of Public Safety. The press release is here. This is the Government’s challenge to North Carolina’s “bathroom law” (H.B. 2), which requires that public restrooms be designated for persons based on their birth gender (“biological sex”), and thus disallows transgender men and women from using public restrooms consistent with their gender identity, as opposed to the gender listed on their birth certificate. For it’s own part, North Carolina has also filed a suit asking for a declaratory judgment that the legislation does not violate federal law.
I’m not an expert on these particular civil rights statutes, like Title IX and Title VII, so I will leave it to others to discern whether the Government has the better of the argument. And I don’t generally post on civil litigation here, unless it involves a constitutional question. But I thought a couple of observations, relevant to this site, might be useful, given the commentary I have seen.
First, the Government does not allege a violation of the Constitution in this lawsuit. Given the Government’s argument that the law constitutes unlawful discrimination on the basis of “sex,” one might have thought that the Government would also allege that North Carolina was discriminating on the basis of gender in violation of the 14th Amendment. It did not, contrary to some of the media coverage suggesting that the law is allegedly unconstitutional.
That would have been interesting, as it would have raised the question of whether the Equal Protection Clause treats discrimination against transgendered people as discrimination on the basis of “gender” – thus triggering intermediate scrutiny, and requiring the State to show that the law is substantially related to an important government interest, and with an exceedingly persuasive justification (see United States v. Virginia) – or whether it amounts to discrimination on the basis of a status that is not afforded heightened judicial scrutiny, in which case the Feds would have to show that the law is not rationally related to any legitimate interest. But even if the case would not trigger heightened scrutiny, there is a question as to whether the Government could prevail on the notion that the law amounts to a bare desire to harm a politically unpopular group (and the legislation is broader than the bathroom provisions). But that argument will have to wait for another day. And I wonder whether the DOJ is sufficiently uncertain about the equal protection issue that it decided to stick with what it perceived as stronger, non-constitutional claims.
It is also notable that North Carolina is in the Fourth Circuit, and it was that circuit’s appellate court that recently ruled on a claim that involved a transgender boy’s challenge to a school policy requiring him to use the girl’s restrooms. The Fourth Circuit (like the district court) did not reach the equal protection claim raised in that case, but instead remanded for application of the proper Title IX evidentiary standard. See G.G. v. Gloucester County School Board.
Second, there is almost no chance, for now, that any official in North Carolina could be prosecuted under the criminal civil rights statutes. The willful deprivation statute requires deprivation of a constitutional right, and that the official have the willfulness mens rea with respect to a constitutional right. Until it is clear that this law, or one like it, implicates a constitutional right, I can see no basis for applying either sections 241 or 242 to any state official at this point.