Bathroom Legislation: Unconstitutionality Is Only Part of the Story

Guest column by Julia Stronks

In February 2016, the city of Charlotte, North Carolina, passed an ordinance protecting LGBT people from discrimination in the area of public accommodation. Public accommodation includes the rights of consumers to be treated equitably and the right to access facilities. A month later the state legislature was called into a special one-day session and passed House Bill 2 (HB2)in response to Charlotte’s anti-discrimination ordinance.

HB2 said three things. First, it declared  that all public accommodation legislation had to be passed at the state level rather than the city level. Second, all public accommodation bathrooms in the state would be single-sex. Third, a person’s birth certificate would determine what sex that person is.

Why Unconstitutionality Is Only Part of the Story

North Carolina’s HB2, which has become known as the “Bathroom Bill,” reveals so much about our culture’s fear and its failure to understand the Constitution. In this article, I explain why HB2 is clearly unconstitutional. But I will also stress that constitutionality is always only one small part of understanding why legislators do what they do. A hostile feeling (or animus) toward transgender people becomes an important part of the legal discussion.  This animus is rooted in fear and confusion. Even if HB2 is removed, the animus will remain. So as trite as it may sound, those of us who feel outraged by laws like this need to focus on education and relationships.

My Own Culpability

I know this to be true from experience. I have to admit that 20 years ago I would have been someone supporting North Carolina HB2. Twenty years ago I had a binary view of sexual identity, seeing only male and female. I knew very few gay people. I knew nothing of intersex. I thought transgender people had psychological problems, and they made me uncomfortable. I was scared of them.

I regret this. I wish it were different, but I think the vast majority of people that support legislation like HB2 are like I was.

The stories of others changed me. I came to know gay and lesbian people about fifteen years ago. I first met some transgender people seven years ago. I was uncomfortable at first, but I listened to them. They taught me things. I saw them as human beings just like me, not as different, not as “the other.”

HB2 is unconstitutional. As someone who loves law, I wish that fact ended the conversation. But, though law is important for justice, experience and relationships can be even more powerful in recreating safe spaces for those who are discriminated against. In other words, while it is crucial that HB2 be ruled unconstitutional, this will not in itself take away the animus against the transgender community.

Reaction to HB2

After the North Carolina legislature passed the bill overturning Charlotte’s ordinance that had been designed to protect LGBT people from discrimination, public response was swift. Businesses withdrew from North Carolina, entertainers canceled performances, and  organizations decided not to hold conventions in the state. The U.S. Justice Department declared that HB2 violates Title IX of the federal Civil Rights Act. President Obama confirmed that federal funding is put at risk when states violate civil rights in this way. Lawsuits are pending.

What Can We Expect to Happen Next?

Much of the legal discussion is currently focused on federal civil rights law because that is in the purview of the Justice Department. The Justice Department and other federal agencies like the Equal Employment Opportunity Commission say that sex discrimination is clearly illegal under Titles VII and IX of the Civil Rights Act. And, they interpret sex discrimination to include discrimination against transgender people. However, we do not have high level federal court analysis of the term sex discrimination, so this matter is still to be litigated.

The most clear legal argument against HB2 rests in the 14th Amendment’s Equal Protection Clause. It’s important to understand how this clause works. Then, as we look at a U.S. Supreme Court case from twenty years ago, it will become clear that HB2 would be declared unconstitutional even by a Supreme Court that tends to run conservative.

Equal Protection Analysis

It comes as a surprise for many to learn that the equal protection clause of the U.S. Constitution does not protect us from all discrimination. Rather, it protects us from certain kinds of discrimination. If you think about it, almost all laws discriminate against someone in that they distinguish between people. Laws that say you must be 18 to smoke or 16 to drive discriminate against youth. Laws requiring helmets or laws that prohibit smoking discriminate against people that don’t want to follow them. Some discrimination is legal; some is not.

So, what sort of discrimination is not allowed? One hundred years of 14th Amendment equal protection jurisprudence outlines for us the approach that judges take when they examine laws that seem to discriminate.

A protected class

Laws that discriminate against a “protected class” such as racial groups receive the highest level of judicial examination using the strict scrutiny test. In these cases the government has to prove two things before the law is allowed to stand. It must prove first that it had a compelling reason to craft the law. Then it must prove that it took the least restrictive alternative to achieve its compelling interest. If both levels of this test are passed the government legislation will stand, even if it discriminates. But, this is a hard test to pass. Very often cases that involve the strict scrutiny test find that the discriminatory law is unconstitutional.

An unprotected class

Groups of people like smokers or young people are not in a protected class. If a law discriminates against them, justices are more willing to defer to the legislature. A lower test called rational basis is used to analyze these cases. The government just has to show that it had a reasonable interest to pass the law and that it used a rational means to achieve its interest. When the rational basis test is invoked, laws usually are found to be constitutional even though they discriminate. But, there is one exception, and it applies here: laws that the government says were passed for good reasons will fail if the litigants can show that there was a bad fit between the law as written and the goal that the law was to achieve. If a law is overbroad, vague, or written in a way that expresses animus against a group, the law will fail.

Usually, the level of test that is chosen by the judges is critical. This matter is made even more complicated by the fact that sex and gender are not fully protected classes, receiving sort of a combination of the two judicial tests. But I do not think that the level of test really matters in this case. I believe that under any test HB2 fails, and the next section explains why the Supreme Court would agree.

Supreme Court Guidance

In 1996 the Supreme Court handed down a very important case, Romer v Evans. At the time, legislation protecting LGBT interests as civil rights was in its infancy, but it loomed on the horizon.  This frightened conservatives in Colorado, and in 1992 they crafted and passed an amendment to the state constitution. The amendment ruled that no government entity within the state could take action that might recognize gay people as a protected class. As the amendment was debated after it passed, two issues related to the federal constitution emerged. First, could a state pass a law that said no government entities within the state were allowed to offer protections to a group of people? Second, under the federal 14th Amendment, were gay people entitled to a higher level of judicial scrutiny than simply rational basis?

The case eventually reached the Supreme Court. In a 6-3 decision, moderately conservative Justice Anthony Kennedy wrote the decision focusing only on the first issue. He declined to say that homosexuality was a protected class, so that meant a higher level of scrutiny would not be used. But he then took a startling position saying that even using the lowest test possible, the Colorado amendment failed judicial scrutiny. He said that the amendment failed the rational basis test because the purpose of the amendment was to express animus toward a group of people, denying them access to the political process. Because the state had said no other government entities were allowed to offer protections, gay people did not even have the right to ask for these protections. And that was not rational or reasonable. In the two most often quoted passages from the decision, Justice Kennedy said this about the Colorado state constitution amendment:

“Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

And,

“[It] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”

Note the striking parallels between Colorado’s state constitutional amendment in Romer and North Carolina’s HB2. In both, only one group of people suffers. In both, that group is shut off from asking government agencies to protect them.

So, let’s apply Romer to HB2. Another way of saying this is, let’s apply the lowest level rational basis test to HB2. As in Romer, if the legislation fails under the low test it will also fail at any higher level test. If HB2 fails the rational basis test, it is unconstitutional.

What is the intent of the legislature? Is it reasonable? Yes. The intent referenced in the bill is to provide for consistency across the state with respect to regulation of public accommodations and schools. The intent articulated by lawmakers is to protect students by having single-sex bathrooms. Both of these purposes have been considered reasonable in the past, so the first leg of the rational basis test is met.

But, the second leg of the test is where the statute fails. There are two questions. Is it rational to try to achieve consistency in public accommodation law by providing for single sex bathrooms, requiring the birth certificate to be the only test of one’s “sex”? And, is it rational to say safety of students is achieved when the birth certificate is used to identify one’s “sex”? When we look at issues of over-breadth and fit,it is clear that the answer to both questions is no. This law does not achieve its goal for three reasons that are not in dispute:

1.  People do not carry birth certificates around, so requiring this as proof of one’s sex is not rational.

2.  There is no evidence of crime or harm by transgender people in any of the states or cities that protect LGBT people in public accommodation.

3.  There is a great deal of harm done to people in bathrooms, school showers and locker rooms—by people of the same gender. Removing transgender people from the bathroom will have no impact on existing harm.

Safety in a public bathroom is very important, but the goal of safety is not met by the legislation. The HB2 legislation, like that in Romer, is both too broad and too narrow. And, because it targets only one group, transgender people, it expresses animus. It fails the rational basis test.

This Issue Is All about People—and Empathy 

As I mentioned early in this article,  my life was changed through getting to know LGBT people,  listening to their stories, and learning from them. I developed empathy. It is the only way.

I have a former student who has taught me much. She is lesbian, married, and has two children. One of the kids is gender non-conforming, meaning in this case born female but appears to some people as male. When this child uses the women’s bathroom, some women have said, “I don’t want a boy in here.” With stunning generosity and courage, this child responds calmly that she is a girl. The women then apologize profusely.

My student, the mom, gets weary. Her life is filled with worry and concern for her child, who will face so much difficulty—even animus from others. She says she is sick of having her child put in this situation. It isn’t her child’s job to teach the rest of the world.

I get it. Again, I wish it were not so. But, while the law is important, the courage of her child is also going to be a very big part of how things will change.

At the moment, the litigation against schools that are trying to do right by transgender students is brought by Christian groups like Alliance Defending Freedom. I can’t stand it that Christians are behind this effort to promote discrimination, but I know many are more scared than mean-spirited. I also know that the only way they will stop is if they meet and get to know transgender people, especially children and fellow Christians.

It isn’t my place, but still I ask that those among you who are transgender or in other ways impacted by these laws to let yourselves be known. Tell your stories if you can.

The Canadian poet Leonard Cohen’s beautiful song Anthem resonates for me in this situation.

Ring the bells that still can ring
Forget your perfect offering
There is a crack in everything
That’s how the light gets in.

I was one of the cracks. Those women in the bathroom who questioned my student’s child were cracks. My student and her child are part of God’s light. It isn’t their job to teach me, but I am grateful that they did. It is the only way that I could see.

This column is re-printed with permission from Christian Feminism Today.