Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.
Ill-defined 'gender identity' standard could wreak havoc on equal-protection laws, Campbell University constitutional scholar says
Repeal of House Bill 2 closed one chapter in the culture war. But a federal civil rights case spawned by the so-called bathroom bill is likely to go forward, said Campbell University constitutional law professor Greg Wallace.
UNC-Chapel Hill student Joaquin Carcano, UNC-Greensboro student Peyton Grey McGarry, women who transitioned into male identities, and Angela Gilmore, a lesbian and an associate dean and professor at the N.C. Central University law school, are plaintiffs in the lawsuit against the state.
They have argued that H.B. 2 enabled discrimination against transgender persons, and its passage was motivated by animus toward them.
"I think they can still make those arguments," Wallace said.
"I don't think they have any plans of dropping their lawsuit at this point." While their constitutional arguments may be more difficult to make, he said, the new law and repeal of H.B. 2 does not eliminate the state's potential liability entirely.
If the fluid concept of gender identity is protected by nondiscrimination provisions, Wallace said, privacy regulations, workplace rules, and even the future of gender-specific sports will be jumbled.
Wallace said Carcano still could argue that
House Bill 142 discriminates against transgender persons by denying them the legal right to use the bathroom of their choice, instead of bathrooms specifically assigned for male and female birth anatomy.
Plaintiffs also could argue that the state maintaining control over bathroom policies, and denying localities the power to pass nondiscrimination laws for another three years, are motivated
"by hostility towards gay and transgender persons," Wallace said.
Because repeal changed the law, plaintiffs would have to amend their lawsuit, or the complaint could be dismissed with an order to refile it based on the new law, Wallace said.
Oral arguments on the plaintiffs' appeal scheduled for May in the 4th U.S. Circuit Court of Appeals probably would be postponed, he said.
Gender identity and gender expression are an emerging and expanding area of civil rights activism. New York City adopted a nondiscrimination ordinance with 31 gender identities, and said the list was not exhaustive. Facebook offers users 51 gender options.
"I think frankly what's happening here is that you have transgender activists who are pushing hard to destroy longstanding social norms, and legal rules about sex and privacy," Wallace said.
"They really want to erase from the law any sort of binary distinctions between men and women that are based on biology" or genetics, he said.
He cautions about opening a Pandora's Box of consequences that seldom are discussed in the fight for legally protecting gender fluidity.
"This could take us down a road that is going to be bad for privacy," Wallace said.
"It's going to be bad for civil rights especially with respect to women's groups for a lot of the hard-fought civil rights protections they received. It's going to be bad for children. It's going to be bad for families."
One result could be court rulings that require opening bathroom and changing facilities to myriad genders.
"Once you destroy the sort of binary distinction between men and women based on sex, and replace it with something as fluid and nonbinary as gender identity, you end up with some really complicated and ultimately absurd results in the law," Wallace said.
"The law is probably just not terribly equipped to handle that," he said.
For example, he mused, there would be serious implications for the Equal Pay Act.
"If you have a situation where a man can be a man, or a woman, or he can be a man and a woman, or he can be neither a man or a woman, how do you enforce the Equal Pay Act?" Wallace said.
"Which locker room at the school or at the local health club does a pangender use? Which team at the local high school does a gender nonconforming person use ... or a gender queer person use?" he said.
The Obama administration attempted to include gender identity as a category covered by Title IX, the federal law that prohibits sex-based discrimination at schools receiving federal money.
If Title IX were expanded to encompass gender identity,
"What's going to happen to sports?" Wallace asked.
"Schools are not going to be able to create separate teams for all 50 different gender identities."
To comply with a gender identity law, schools might have to create just one team for all-comers, and the best athletes get selected.
"I think at that point women's sports just sort of goes by the wayside," Wallace said.
Crystal ball gazing aside, Wallace said the immediate effect of H.B. 2 repeal would be to return to a status quo that was
"governed by social norms and common sense, not by governmental rules," Wallace said.
"What that means is in many instances transgender persons will be able to use the restrooms of their choice if they look like a man or a woman."
But because the General Assembly reserved to itself the prerogative to set rules for bathroom use,
"The thing that's going to keep the burly man out of the women's bathroom is going to be the state trespassing law," Wallace said.
