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Legal Review: The Continued Debate Over LGBTQ Rights

by Mary Nerino May 11, 2016 at 1:00 pm 1 Comment

Legal Review PriceBenowitz

Mary Nerino is an attorney in Virginia with Price Benowitz LLP who practices in criminal defense. In addition to misdemeanor, DUI, and felony cases, Mary represents students who are facing allegations of misconduct North Carolina is now suing the federal government in defense of its discriminatory law concerning the LGBTQ population and the usage of public restrooms. According to the law, people may only use public restrooms corresponding to the gender listed on their birth certificates.

The Justice Department found the law to be a violation of the 1964 Civil Rights Act in its function of restricting a certain portion of the population, as identified by their personal gender identity, when it comes to use of the restroom and public facilities.

In other words, the law condones and actually facilitates a form of sexual discrimination that is generally frowned upon – not to mention, illegal, as outlined in Title VII of the 1964 Civil Rights Act.

This contentious issue becomes highly relevant when it comes to the workplace — where employees require unfettered access to facilities in which to change and use the restroom — and morally speaking, should have every right to do so without having their own conceptualization of their gender identity questioned.

The law not only disregards the needs and rights of a small and marginalized subpopulation within our nation, but it does so by holding steadfast to an old and outdated view on gender – as a static and fixed medical term referencing only physical attributes of an individual.

It completely ignores the complex emotional implications that comprise gender identity, and that make gender more of a fluid, gray-area issue, best measured on more of a spectrum-like basis.

Taken within the context of everything the LGBTQ community has been striving to communicate through efforts of organization and advocacy, North Carolina’s chosen interpretation of the law represents a disturbingly invalidating and closed stance on this delicate issue and the plight of the LGBTQ community.

The specifics of the clash occurred when Justice Department officials called for a revision to the statute that would incorporate the legally mandated protection from sex discrimination into its policy (i.e. Title VII); North Carolina argues that the LGBTQ community is not explicitly named — nor was the population intended protection – within Title VII’s traditional implications.

We can presumably agree that before the trans community emerged as an organized social movement in the political playing field, they were not specifically named in Chapter VII; however, it is also safe to say that the purpose of Chapter VII was designed to specifically prevent this type of debate, which has only arisen because discrimination on the basis of sex has occurred, and therefore protection was implied, if not specifically cited by the movement’s only recently determined name.

We encounter this conundrum time and time again, when a changing social climate necessarily calls our country’s policies into question, as it becomes apparent that an oversight has taken place — often due to these same issues of verbiage.

Changing verbiage, changing contexts, and changing times all necessitate the modern interpretation of governmental policy – and somewhere in the efforts to modernize our

understanding of what our Constitution represents, modern-day conservative forces would prefer to blatantly exclude an entire group of individuals, whose needs have become a source of international concern, rather than to address the underlying problem – which is that our conceptualization of gender itself has become outdated.

Who are we to rigidly uphold an old and outdated conceptualization of gender as a black-and-white issue? And what does it say about a government that is so fearfully attached to a strict interpretation of Chapter VII that it is willing to alienate and marginalize an already vulnerable population?

If a commitment to social justice is not enough of a motivation to do so, perhaps the billions of dollars North Carolina stands to lose in federal funding will be motivation enough for the state to make haste in creating policy that is aligned with our national values and federal laws.

In the meantime, it is worth our while to begin to ponder how to best define gender in inclusive and non-discriminatory terms that do not oversimplify this issue of growing social importance.

When it comes down to it – who do you want to be the determining authority on defining gender? Chances are, North Carolina’s state government would not be your first choice. It certainly wouldn’t be mine.

Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.

  • Law Professor John Banzhaf

    Much of the analysis of the cases
    concerning North Carolina’s new restroom law has focused exclusively
    on one issue: does the federal civil rights law which prohibits
    discrimination based upon sex or gender apply to transsexuals.

    However, the cases now before the federal courts, where an
    agency’s interpretation of a federal law is up against a clear
    statute enacted by a sovereign state, arguably raise several
    different issues.

    1. When Congress passed a law banning discrimination based upon
    sex or gender, did it intend to apply to sex or gender in the
    traditional biological sense of having a male or female sex organ,
    or did it also mean to include mental gender identity? On this
    question there appears to have been no definitive ruling, and courts
    have come down on both sides of the issue.

    2. If “sex” also includes mental gender identity, then it would
    constitute “discrimination” for public places to refuse to admit or
    serve transgender people simply because of the gender identity. But
    is it also “discrimination” if their request to use a restroom
    different from that which corresponds to their anatomical gender is
    denied, or is it more a question of what is a “reasonable
    accommodation” to their interests – a determination which is usually
    based upon a balancing of different competing interests such as
    concerns by female restroom users over sexual privacy and fear of

    3. If the issue is one or providing a “reasonable
    accommodation,” is the only reasonable means of accommodating the
    restroom needs of transsexuals to allow them to go into a restroom
    normally reserved for people with different genitals, based upon
    their own unsubstantiated claims? In other words, wouldn’t
    providing a reasonable number of single-user all-gender restrooms
    suffice? Alternatively, would it still be a “reasonable
    accommodation” if people claiming the need to use different
    restrooms were permitting to do so, but were required to have with
    them a certificate indicating that they are in fact transsexual, as
    we now do with people claiming a “reasonable accommodation” for
    various handicaps?

    4. If federal law requires this type of accommodation for people
    who dress and act in ways which appear to be contrary to the normal
    expectation for their gender because they are transsexuals, why
    shouldn’t the same accommodation have to be made for people who are
    transvestites who have a similar strong need to dress and appear as
    the opposite gender?

    5. Although Congress may override or preempt state laws when it
    chooses to do so, courts generally require strong evidence of
    Congress’ intent to be so before they will override a statute of a
    sovereign state, especially in a legal area traditionally left to
    the states. Here the only such evidence is a letter from an agency
    providing its recently-changed interpretation of a statute. Is this
    sufficient for a court to override a state law, or should Congress
    take further action to clarify its own intent before the courts
    override a state law?



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