Transgender Bathroom Policy

DeVault unpacks state resistance to federal access policy
Thursday, May 26, 2016

Professor Ileen DeVault, a labor historian who is also a gender studies expert, discussed the potential impact of transgender rights, again catapulted into the national conversation on Tuesday, when 11 states sued the federal government.

Arguing that the Obama administration had no authority to tell public schools to permit students to use restrooms corresponding to gender identity, the lawsuit decried federal guidance issued two weeks ago about sex-segregated bathrooms.

The federal directive would “… turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common sense policies protecting children and basic privacy rights,” the plaintiffs said.

In an interview about North Carolina’s refusal to comply with federal guidelines requiring access based on gender identity to restrooms and other workplace facilities, DeVault provided context.

She talked about the impact of the current national conversation on transgender rights and about the specifics of House Bill 2, passed into law in North Carolina in March. It designates access to sex-segregated restrooms on the basis of the biological sex stated on one’s birth certificate.

How do you expect this row to play out in private and public workplaces across the nation?

“Both private and public workplaces have been dealing with transgender employees quietly and calmly for decades.  For most major corporations, the ‘bathroom question’ is a nonstarter.  For smaller employers, ‘multiple occupancy’ facilities are rare. The fact that the most repeated claims from supporters of legislation opposing access to bathrooms matching gender identity are stories of men who ‘decide that they feel like a woman today’ and put on a dress in order to ‘infiltrate’ a woman’s bathroom in order to carry out sexual assault bears witness to their complete ignorance of what it means to be a transgender individual.  It also displays their lack of understanding of sexual assault.

“I find three other aspects of the bill to hold more troubling implications for workplaces across the nation.  First, the bill alters a key phrase from the Civil Rights Act of 1964, which banned discrimination on the basis of race, religion, color, national origin, or sex.  Throughout House Bill 2, this phrase is altered to read ‘discrimination on the basis of race, religion, color, national origin, or biological sex.’  Over the past two decades in particular, decisions by the Equal Employment Opportunities Commission have broadened the reading of ‘sex’ to include issues of gender identity and expression.  In other words, if people do not behave the way others believe that people of their ‘sex’ should behave, the Equal Employment Opportunity Commission and the U.S. Supreme Court have ruled that they cannot be discriminated against because of their sex. Through House Bill 2, North Carolina is attempting to define “sex” more narrowly and, therefore, rewrite the constitutional history of sex discrimination under the Civil Rights Act.”

“The next troubling aspect of HB 2 comes from Part II where, under the guise of ‘statewide consistency,’ the bill preempts the right of any local government to pass laws concerning ‘the wage levels of employees, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce.’  This is pushback against recent municipal and county actions legislation across the country which attempts to raise minimum wages, regulate the scheduling of hours, institute paid sick leave or perhaps even alter child labor laws.”

“Finally, Section 3.2 of the bill, which is about charges of discrimination and their ‘amicable resolution,’ explicitly states that ‘no person may bring any civil action based upon the public policy expressed’ in HB 2.  In other words, there is no recourse for the employee who finds the result of this bill to be unfair or discriminatory.  There will be no ‘amicable resolution.’”     

Historically, workplaces have been in the midst of civil rights flashpoints. Is there anything from those instances that will be the same or different with this issue?

“North Carolina’s ‘bathroom bill’ most reminds me of the furor over the Equal Rights Amendment to the U.S. Constitution in the 1970s.  The amendment, first introduced in Congress in 1923, states simply: ‘Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.’  This straightforward amendment came closest to being passed in the 1970s, when it was passed by Congress and then ratified by 35 out of the 38 states it needed for passage.  One of the scare tactics used by Equal Rights Amendment opponents in the 1970s was to claim that it would eliminate single-sex bathrooms. :

Is the bathroom rights conflict helping people understand gender rights better? Or, is it clouding the issues?

"The conflict over House Bill 2 does not help people understand the rights of the transgender community at all.  Instead, it blurs the situation of a post-operative transsexual -- who may, even in the state of North Carolina, receive a birth certificate noting their post-operative sex -- with that of a transvestite, someone who dresses in clothing that conventionally would be worn by the opposite gender.  As most commonly used today, it appears that “transgender” covers both these two extremes and everything in between.  People prefer different terms for the varied types of transgender identity, creating a reliance on the term transgender, or even ‘trans.’”