The legal controversy surrounding North Carolina’s “bathroom bill” is not about bigotry. To be sure, unequal treatment of and discrimination against the transgender community could be one of the intended consequences of what is being proposed. But ultimately, the legal battle being forged between the Department of Justice’s Civil Rights Division and the State of North Carolina is an issue of separation of power. And it’s not clear that this is a battle that the Justice Department can win.
Remember that whatever our own particular social views, our democracy requires a clear separation of power between the three branches of government. Congress makes the law. The judiciary, including the Supreme Court, interprets the law. And the executive branch — which includes the president and the Department of Justice — enforces it.
Over the course of Barack Obama’s presidency, the Department of Justice has consistently interpreted Title VII’s and Title IX’s of the Civil Rights Act’s definition of protected class to include gender identity. In announcing the department’s federal lawsuit against North Carolina, Attorney General Loretta Lynch vehemently stated that denying legal protection for gender identity highlights a difference without a distinction from protections already guaranteed for gender and sexual orientation.
Practically speaking, gender identity is a clear extension of gender. Legally speaking, though, the distinction is more than semantics.
In drafting Title VII and Title IX, Congress specifically identified classes of individuals who must be protected against civil rights abuses, including: race, color, sex, religion and national origin. But Congress was silent on the issue of gender identity. (Interestingly enough, and obviously in response to the Jim Crow era of segregation, Congress made clear that having separate but equal bathrooms for men and women is legal and does not violate a person’s civil rights).
It is unknown whether Congress’s silence was the result of a naive omission or an intentional exclusion. Either way, proponents and opponents of HB2 have since interpreted the silence to their respective advantages. Proponents of HB2 argue that Congress never intended to include gender identity as a protected class, allowing states to create laws that may lead to unequal treatment based on that concept. Opponents of HB2 argue instead that Congress didn’t specifically identify gender identity because the concept was already subsumed within the definition of gender. The latter is the Justice Department’s position.
But here comes that nasty problem of separation of powers. In its decision to enforce federal civil rights laws against North Carolina, the Justice Department is acting on its own interpretation of a now-ambiguous law. It may be that its interpretation is in line with the spirit of the law — which I actually believe it is. But that’s not good enough for the Constitution. North Carolina believes that the Justice Department can’t wag the proverbial congressional dog and replace an ambiguity with a legal certainty — especially when the issue is this controversial.
So far, the judiciary hasn’t really clarified the issue. Courts are supposed to resolve competing interpretations of a law and clarify ambiguities using the clear language of the law. (And yes, let’s all pretend for the sake of argument that every law is clear.) The 4th Circuit, which includes North Carolina, recently upheld a transgender teen’s right to use a bathroom that matched his gender identity if not his external genitalia. LGBT advocates naturally heralded this as a success. Legal scholars, however, continue to hold their breath, because the circuit’s ruling was based on the Obama administration’s interpretation of Title VII and Title IX, not a specific congressional directive.
In light of the ambiguity, the Justice Department is keenly aware that it must tread lightly. Indeed, despite the department’s power to revoke federal funding to states that violate civil rights laws, the administration has already stated that it will not revoke funding while litigation is pending. The Department of Education, for its part, has issued guidelines without teeth. Back to square one.
All eyes will therefore be on North Carolina’s and the Justice Department’s next moves. But ultimately, the reality is that the bill itself is likely a Trojan horse. Focusing on a visceral emotional response to the social policies, rather than the legal crux of separation of powers will allow the remaining provisions — including minimum wage mandates and the allowance of sexual orientation conversion therapy — to infiltrate unnoticed.
That may or may not ultimately be what happens, but as this plays out, there is one thing that is very clear: the Constitution ensures that it is Congress that should determine the fate of Troy.