Opinion: Why Sex Lies At the Heart of the HB2 Lawsuits

Worldviews clash in dueling House Bill 2 suits

From the U.S. Department of Justice’s lawsuit Monday against the State of North Carolina, et al:

31. An individual’s “sex” consists of multiple factors, which may not always be in alignment. Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female.

32. For individuals who have aspects of their sex that are not in alignment, the person’s gender identity is the primary factor in terms of establishing that person’s sex. External genitalia are, therefore, but one component of sex and not always determinative of a person’s sex.

33. Although there is not yet one definitive explanation for what determines gender identity, biological factors, most notably sexual differentiation in the brain, have a role in gender identity development.

34. Transgender individuals are individuals who have a gender identity that does not match the sex they were assigned at birth. A transgender man’s sex is male and a transgender woman’s sex is female.

And that’s the heart of the matter, isn’t it? Of course, as has been noted numerous times since it passed March 23, House Bill 2 is about far more than bathroom use. But yesterday was entirely about bathroom use, and its relationship to the idea of discrimination and equal protection under the law. For all the passages of ordinances and laws, post facto attempts at reconciliation, and crossed lawsuits, this is what it comes down to: The United States government is prepared to recognize that what we refer to as “sex” isn’t exclusively a matter of external plumbing. The State of North Carolina is not.

And now we see whose perception wins. Almost certainly it’ll end up before the U.S. Supreme Court, and I think the court’s ultimate ruling will be a Brown v. Board of Education for the new millennium (or at least that year’s Obergefell v. Hodges).

I say that because it’s clear which way the social and legal current is running, as exemplified by the 4th U.S. Circuit Court of Appeals ruling in the Gavin Grimm case last month. In punting the case back to the federal district court, the appeals court made a few things plain: gender identity, not gender assignment at birth, determines which bathroom is appropriate to use; this interpretation does not abolish separate-sex bathrooms; and the supposed “accommodation” of single-occupancy restrooms for transgender people is actually a glaring, textbook example of discrimination.

The state’s twin lawsuits yesterday against DOJ—one from Governor Pat McCrory’s office, the other from Senate President Pro Tem Phil Berger and House Speaker Tim Moore—effectively pretend the federal appeals court ruling never happened. Especially in the latter complaint, you can sense the astonishment born of the unwillingness, or incapability, to comprehend any gray area between male and female in some people; or that Charlotte’s ordinance changes wouldn’t “allow anyone to use any communal public bathroom, locker room, or shower based solely on that person’s self-declared ‘gender identity,’” in the lawsuit’s words.

The suits also exhibit a willful blindness to what discrimination is. Again, from the Berger-Moore suit: “Despite being grossly mischaracterized in the media, the Act does not embody hostility towards those whose gender identity differs from their biological sex. To the contrary, the Act specifically allows a flexible system of single-occupancy facilities for persons who do not wish to use public facilities designated for their biological sex.”

That’s a pretty astounding statement, really. It’s odd for a 47-page federal complaint to bitch about media coverage, for one thing. It’s also absurd for anyone to argue that forcing transgender people to use separate bathrooms represents “a flexible system” or “accommodation” any more than separate drinking fountains and the backs of buses during Jim Crow days were special favors done for the benefit of African-Americans.

As U.S. Attorney General Loretta Lynch explained yesterday during her news conference, “There are any number of ways to accommodate privacy interests in a bathroom or changing area as long as they are equally available … You cannot single out any one particular group of people to be treated differently.” It’s not a difficult concept to grasp unless ideological, political or other reasons compel you not to.