Here’s why he did it:
Ordinance defied common sense, allowing men to use women’s bathroom/locker room for instance. That’s why I signed bipartisan bill to stop it
— Pat McCrory (@PatMcCroryNC) March 24, 2016
… which kind of reminds me of when Edith Bunker of “All in The Family” couldn’t understand how a man could be in love with another man, and therefore didn’t understand the concept of gay rights. The ordinance only defies common sense if you are blind to the problem it seeks to remedy.
Speaker Jim Moore also defended the law, saying:
“One of the biggest issues was about privacy. . . The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”
The final bill is attached below the fold.
Charlotte Mayor Jennifer Roberts, a Democrat, released a statement saying she was appalled by the bill’s passage.
“This legislation is literally the most anti-LGBT legislation in the country,” she said Wednesday.
So how did we get here?
North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.
Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city’s existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.
And so on February 22, Charlotte came forward with an ordinance which did just that:
The changes mean businesses in Charlotte can’t discriminate against gay, lesbian or transgender customers, in addition to long-standing protections based on race, age, religion and gender. The ordinance applies to places of public accommodation, such as bars, restaurants and stores. It also applies to taxis.
The most controversial part of the ordinance would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify.
Here’s what the state’s law does:
- The statute overturns and bans local laws (including Charlotte’s) that don’t conform to the state’s nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn’t ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
- It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they’re forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it’s not required.
The governor and bill sponsors want the focus to be on the bathroom issue — it is something everyone can relate to — but that will involve a lot of silly fearmongering that has little basis in reality. Sexual predators can exist regardless of the sexual orientation of the predator OR victim. You don’t reduce incidents of sexual predators simply by discriminating against people of a certain sexual orientation. The one has nothing to do with the other. And in fact, we know from experience in places which permit transgender accommodation that the fears of heightened sexual assault or invasion of privacy are unfounded.
Cambridge, Mass, for instance:
Back in 1984 Cambridge enacted an ordinance that established the Human Rights Commission. The purpose of the ordinance was to protect the human rights of all citizens of the City. In 1997 this ordinance was amended to specifically include gender identity and expression. Much like the Transgender Equal Rights Bill proposal, the City of Cambridge sought to offer protection to transgender individuals from being harassed, fired from a job, denied access to a public place, or denied or evicted from housing. Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.
No incidents in almost 20 years.
But the bathroom thing is partly a diversion. What is at stake here is LGBT rights and non-discrimination laws in a broader sense. This is the new battlefront after the gay marriage victories.
Already, two states have passed laws that preempt local non-discrimination provisions. In 2011, Tennessee passed such a law, and Arkansas passed one in 2015—both in responses to cities adopting or considering ordinances.
North Carolina’s law us like the Tennessee and Arkansas law. This is the first time that a law has been passed at the state level which mandates that students use the bathroom corresponding to their “biological sex” or some similar phrase. In February, South Dakota lawmakers passed a similar bill, but Republican Governor Dennis Daugaard vetoed it, saying the law did not answer any pressing need and that local authorities were better-equipped to handle the issue than state lawmakers.
The student-restroom laws in North Carolina and elsewhere raise other questions, most notably whether schools fall afoul of federal Title IX regulation and thus endanger federal funding. It would be ironic if the North Carolina’s attempt to preempt Charlotte’s ordinances was itself preempted by federal law, but that’s certainly a highly possible outcome.
The other problem with the new state law is the notion that municipalities must conform to the state’s nondiscrimination laws. While that is generally true, “conformity to nondiscrimination laws” has never meant that municipalities had to be as discriminatory as the state. Rather, it has always meant that municipalities must be at least as NONdiscriminatory as the state. Put another way, the purpose of non-discrimination laws is, to stop discrimination. If a municipality wants to do better than the state at stopping discriminating, it has always been free to do that. That’t the way it has been in every state in the country. Charlotte WAS conforming to North Carolina’s non-discrimination laws. AND it added a few non-discrimination laws of its own.
But the rationale of North Carolina’s new state law turns the whole idea of non-discrimination on its head.
Another rationale for the new law is the specious argument that state laws regarding non-discrimination should be consistent throughout the state — that this will somehow help intra-state commerce. Sounds good and legal and rational…. until you actually think about it. How is intrastate commerce affected at all if taxis can ignore LGBTQ people in Raleigh, but can’t in Charlotte? Intrastate commerce isn’t impacted at all. Nor is it affected if the bathroom rules are different in different municipalities.
And if Charlotte wants to prevent businesses from engaging in wage discrimination against LGBTQ workers — well, that doesn’t impact intrastate commerce either. Yes, it makes Charlotte a more appealing place to work than Raleigh if you are a member of the LGBTQ community (or, you know, the human race), but that’s Raleigh’s problem. It doesn’t affect THE STATE or intrastate commerce. So this “conformity of nondiscrimination laws throughout the state” is just a bullshit rationale.
And so the next fight begins. Personally, I am not worried about the final outcome. I’ve been around long enough to see the arc of justice, and which way it bends. In the 1970s and 1980s, when transgender discrimination issues started poking up, they almost universally failed. Not so anymore. Courts are beginning to recognize that that a person could bring a claim under Title VII’s ban on sex discrimination because an employer views an employee’s sexual orientation as “not consistent with … acceptable gender roles.” The U.S. Department of Labor has acknowledged the ruling in Macy v Holder — so now, if you are a business that wants a government contract, fat chance of getting that contract if you discriminate on the basis of gender identity or transgender status. [UPDATE: I’m going to list some federal court decisions which support coverage for transgender Individuals as sex discrimination]
But it is just frustrating to have to continually have these battles for civil rights and, indeed, common decency. I just wish the haters would get tired of losing and give it up already.
Loading...
Reload document 
Open in new tab Supreme Court Decisions on the Scope of Title VII’s Sex Discrimination Provision
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). The Supreme Court held that same-sex harassment is sex discrimination under Title VII. Justice Scalia noted in the majority opinion that, while same-sex harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII . . .statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits ‘discriminat[ion] . . . because of . . . sex.’ [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements.” Id. at 79-80.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to “walk more femininely, talk more femininely, [and] dress more femininely” in order to secure a partnership. Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as “[i]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250. The Court further explained that Title VII’s “because of sex” provision strikes at the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. (quoting City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).
Federal Court Decisions Supporting Coverage for Transgender Individuals as Sex Discrimination
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly. Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female. The court stated that a person is considered transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes.” As a result, there is “congruence” between discriminating against transgender individuals and discrimination on the basis of “gender-based behavioral norms.” Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals. “The nature of the discrimination is the same; it may differ in degree but not in kind.” The court further concluded that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination. Although in this case the defendant asserted that it fired the plaintiff because of potential lawsuits if she used the women’s restroom, the record showed that the plaintiff’s office had only single-use unisex restrooms, and therefore there was no evidence that the defendant was actually motivated by litigation concerns about restroom use. The defendant provided no other justification for its action, and therefore, the plaintiff was entitled to summary judgment.
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female. The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping. The court determined that discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior. The court reasoned that the “narrow view” of the term “sex” in prior case law denying Title VII protection to transgender employees was “eviscerated” by Price Waterhouse, in which the Supreme Court held that Title VII protected a woman who failed to conform to social expectations about how women should look and behave.
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). Plaintiff, who “was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty [and] had a reputation throughout the police department as a homosexual, bisexual or cross-dresser,” alleged he was demoted because of his failure to conform to sex stereotypes. The court held that this stated a claim of sex discrimination under Title VII.
Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000). Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.
Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000). Citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a “man who ‘failed to act like one.'” The court noted that “the initial approach” taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs “has been overruled by the language and logic of Price Waterhouse.”
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., ___ F. Supp. 3d ___, 2015 WL 1808308 (E.D. Mich. Apr. 21, 2015). Denying the employer’s motion to dismiss a Title VII sex discrimination claim brought on behalf of a terminated funeral home employee who was a transgender woman, the court held: “[I]f the EEOC’s complaint had alleged that the Funeral Home fired Stephens based solely upon Stephens’s status as a transgender person, then this Court would agree with the Funeral Home that the EEOC’s complaint fails to state a claim under Title VII. But the EEOC’s complaint also asserts that the Funeral Home fired Stephens ‘because Stephens did not conform to the [Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes’ (Compl. at ¶ 15). And binding Sixth Circuit precedent establishes that any person without – regard to labels such as transgender – can assert a sex-stereotyping gender-discrimination claim under Title VII, under a Price Waterhouse theory, if that person’s failure to conform to sex stereotypes was the driving force behind the termination. This Court therefore concludes that the EEOC’s complaint states a claim as to Stephens’s termination.”
Lewis v. High Point Regional Health System, ___ F. Supp. 3d ___, 2015 WL 221615 (E.D.N.C. Jan. 15, 2015). Plaintiff, a certified nursing assistant, alleged she was denied hire for several positions because of her transgender status. At the time of her interviews, she was anatomically male, and was undergoing hormone replacement therapy in preparation for sex reassignment surgery in the future. Denying the employer’s motion to dismiss her Title VII sex discrimination claim, the court ruled that Title VII’s sex discrimination provision prohibits discrimination related to transgender status.
Finkle v. Howard Cnty., Md., 122 Fair Empl. Prac. Cas. (BNA) 861, 2014 WL 1396386 (D. Md. Apr. 10, 2014). Denying the county’s motion to dismiss or for summary judgment on a Title VII claim brought by a volunteer auxiliary police officer, the court ruled that the officer was an “employee” for Title VII purposes, and that her claim that she was discriminated against “because of her obvious transgendered status” raised a cognizable claim of sex discrimination. The court reasoned: “[I]t would seem that any discrimination against transsexuals (as transsexuals) – individuals who, by definition, do not conform to gender stereotypes – is proscribed by Title VII’s proscription of discrimination on the basis of sex as interpreted byPrice Waterhouse. As Judge Robertson offered in Schroer[ v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)], ‘[u]ltimately I do not think it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.'”
Parris v. Keystone Foods, 2013 WL 4010288 (N.D. Ala. Aug. 7, 2013), appeal docketed, No. 13-14495-D (Oct. 1, 2013). Plaintiff, a transgender female, alleged that she was discharged from her job at a chicken processing facility because of her “gender non-conformity.” The district court, citing Glenn v. Brumby, recognized that the plaintiff’s claims were covered by Title VII’s sex discrimination prohibitions, but granted summary judgment to the employer on the ground that plaintiff’s comparator evidence and evidence of discriminatory remarks by coworkers did not show that her discharge was motivated by her gender identity as opposed to the legitimate non-discriminatory reason proffered by the employer.
Radtke v. Miscellaneous Drivers & Helpers Union Local #638 Health, Welfare, Eye, & Dental Fund, 867 F. Supp. 2d 1023 (D. Minn. 2012). Assessing a claim under ERISA for wrongful termination of benefits to a legal spouse of a transgender individual, the court quoted the language from Smith v. City of Salem that the Supreme Court’s decision in Price Waterhouse “eviscerated” the “narrow view” of “sex” articulated in earlier Title VII cases, and observed: “An individual’s sex includes many components, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual.”
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The plaintiff, a transgender female, was offered a position as a terrorism research analyst before she had changed her name and begun presenting herself as a woman. After the plaintiff notified the employer that she was under a doctor’s care for gender dysphoria and would be undergoing gender transition, the employer withdrew the offer, explaining that the plaintiff would not be a “good fit.” The court stated that since the employer refused to hire the plaintiff because she planned to change her anatomical sex by undergoing sex reassignment surgery, the employer’s decision was literally discrimination “because of … sex.” The court analogized the plaintiff’s claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only “converts.” Since such an action would be a clear case of discrimination “because of religion,” Title VII’s prohibition of discrimination “because of sex” must correspondingly encompass discrimination because of a change of sex. The court concluded that decisions rejecting claims by transgender individuals “represent an elevation of ‘judge-supposed legislative intent over clear statutory text,'” which is “no longer a tenable approach to statutory construction.”
Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008). The plaintiff alleged that she was subjected to sex discrimination when the employer rescinded its job offer after learning that she was transgender. Denying the employer’s motion for summary judgment, the court concluded that the plaintiff’s claim was actionable as sex discrimination under Title VII on the theory that she failed to comport with the employer’s notions of how a male should look. A finder of fact might reasonably conclude that the employer’s statement that the job offer was rescinded because she had “misrepresented” herself as female reflected animus against individuals who do not conform to gender stereotypes.
Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 WL 456173, at *2 (W.D. Pa. 2006). Plaintiff alleged sex-based harassment and termination in violation of Title VII after the employer learned that plaintiff had been diagnosed with gender identity disorder and plaintiff began presenting at work as a female after having presented as a male during the first four years of employment. Denying the employer’s motion to dismiss, the court held that because the complaint “included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant’s actions, plaintiff has sufficiently pleaded claims of gender discrimination.”
Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. 2003). Relying on the reasoning in Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), the court ruled that plaintiff’s sex discrimination claims of hostile work environment harassment and discriminatory discharge arising from her transition and sex reassignment surgery were actionable under Title VII, based on factual allegations that she was discriminated against for “failing to act like a man.” See also Doe v. United Consumer Fin. Servs., No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio 2001).
Creed v. Family Express Corp., 101 Fair Empl. Prac. Cas. (BNA) 609, 2007 WL 2265630 (N.D. Ind. Aug. 3, 2007). The plaintiff, a transgender female, alleged facts permitting an inference that she was terminated because of gender stereotypes; specifically, that she was perceived by her employer to be a man while employed as a sales associate and was fired for refusing to present herself in a masculine way. See also Hunter v. United Parcel Serv., 697 F.3d 697 (8th Cir. 2012) (affirming summary judgment for the employer under both Title VII and state law, the court did not rule that such discrimination was not actionable under Title VII, but rather that there was no evidence that the prospective employer knew or perceived that plaintiff was transgender during the job interview, and therefore a prima facie case of sex discrimination was not established).
Miles v. New York Univ., 979 F. Supp. 248, 249-50 (S.D.N.Y. 1997). Noting that the phrase “on the basis of sex” in Title IX is interpreted in the same manner as similar language in Title VII, the court held that a transgender female student could proceed with a claim that she was sexually harassed “on the basis of sex” in violation of Title IX.