Officials in North Carolina and the U.S. Justice Department filed dueling lawsuits against each other on Monday regarding the state’s law on public restrooms and transgender people.
The Justice Department says it’s protecting the rights of transgender Americans and charges North Carolina with codifying discrimination.
North Carolina says its protecting people who feel their privacy may be violated and that the federal government is overstepping its authority.
Here are six of the key issues in both lawsuits, as told from both sides of the issue.
Transgender rights vs. privacy rights
How do you balance the rights of people who don’t want to share a bathroom with someone who has genitalia opposite of theirs with the rights of people who have a gender identity that doesn’t correspond with the sex organs they have?
It’s a tricky question that both suits address.
Who suffers
North Carolina is worried about what happens if someone with nefarious motives — including the state’s prisoners — falsely claims they “identify” as a woman only to gain entry to a women’s restroom, locker room or shower.
The Justice Department does not mention those concerns in their suit; it does mention potential harm inflicted on the U.S. transgender population.
Who defines “sex”
“Sex” is the term used to define gender in much of federal law.
But does that term include gender identity or does it mean the biological sex you were born with? And what if you were born with a chromosomal identity other than XX or XY? And whose job is it to define the term — the courts, Congress or the Justice Department?
Gender assignment surgery and HB2
In North Carolina, you can get gender reassignment surgery and then have your birth certificate changed. But the Justice Department contends that the procedure is expensive, not always covered by insurance and is a personal choice.
Does HB2 violate Title VII?
Title VII of the 1964 Civil Rights Act deals with employment law and discrimination. The argument about the definition of “sex” comes into play and so does the legislative intent of those who crafted and passed the bill.
Does HB2 violate Title IX?
Title IX refers to the stipulation in the 1972 education law that prohibits “discrimination on the basis of sex in any federally funded education program or activity.” It’s often heard today in suits regarding sexual assault at universities or funding for college sports programs.
You can read the Justice Department’s full lawsuit here, and the North Carolina lawsuit here.