Loading...
Loading...
Click here if you don’t see subscription options
Ellen K. BoegelMay 03, 2016

Legislation and litigation regarding L.G.B.T.I. discrimination and the use of gender-specific public toilets reveals a deep societal divide and illustrates the need for reasoned use of political power. The most recent controversy arose after some localities passed antidiscrimination ordinances that allow people to use facilities based on gender self-identification. In response, states passed laws prohibiting L.G.B.T.I. discrimination claims and limiting the use of gender-specific facilities in public buildings.

The equal protection clause requires laws to be, at minimum, rationally based. In Romer v. Evans (1996), the U.S. Supreme Court struck down a Colorado constitutional amendment that prohibited all government action designed to protect homosexuals. In rejecting Colorado’s argument that the amendment protected religious rights, Justice Kennedy wrote, “it is divorced from any...legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”

North Carolina’s recently enacted law is more carefully worded than the invalid Colorado amendment, but North Carolina’s own attorney general considers the law unconstitutional, and the governor is trying to minimize its impact. Federal civil rights laws prohibit sex-based discrimination in education, employment and housing. The federal circuit court that covers North Carolina has approved the extension of those protections to transgender claimants. Nevertheless, federal law does not prevent sex-based public accommodation discrimination and the equal protection clause does not apply to commercial relationships. Thus, businesses throughout North Carolina may impose toilet use restrictions on transgender customers.

Mississippi also recently enacted a law that limits public facility usage. Mississippi passed a very different type of law that protects defined religious beliefs, including that the terms “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” The law does not take into consideration the conundrum faced by intersex people who are born with undefined or hermaphroditic sex organs.

The Mississippi law clearly violates the establishment clause of the First Amendment, as the constitution requires neutrality among religious beliefs. Any law, like this one, that blatantly supports a specific set of beliefs is an unconstitutional endorsement of religion. Enacting legislation that is patently unlawful and doomed to be invalidated by the judiciary serves no legitimate purpose and erodes confidence in the democratic process.

Religious rights already are protected by the federal and state constitutions and numerous federal, state and local laws. These rights may become clearer if the eight-justice U.S. Supreme Court is able to issue a majority opinion in Zubik v. Burwell, the contraceptive mandate case. Regardless, politicians and advocacy groups serve their constituents best by avoiding unnecessary controversy and looking instead for mutually beneficial solutions. As Gov. Dennis Daugaard of South Dakota, a Republican, stated when he vetoed a bill that would have prohibited transgender accommodation in public school facilities: “Best government is the government closest to the people. Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.”

Political and religious differences aside, many people, including women (who often endure long waits for female-only facilities), parents with small children and adults who need physical assistance, benefit from non-gender-specific facilities. Single-use toilets can become gender-neutral unisex facilities with the simple change of a sign, and money that otherwise would be spent on litigation could be used to retrofit multiperson facilities to provide more privacy for everyone.

Focusing on outcomes that are universally beneficial will not end all disputes regarding the appropriate balance between civil rights and religious rights, but it would be better government.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.

The latest from america

The 12 women whose feet were washed by Pope Francis included women from Italy, Bulgaria, Nigeria, Ukraine, Russia, Peru, Venezuela and Bosnia-Herzegovina.
"We, the members of the Society of Jesus, continue to be lifted up in prayer, in lament, in protest at the death and destruction that continue to reign in Gaza and other territories in Israel/Palestine, spilling over into the surrounding countries of the Middle East."
The Society of JesusMarch 28, 2024
A child wounded in an I.D.F. bombardment is brought to Al Aqsa hospital in Deir al Balah, Gaza Strip, on March 25. (AP Photo/Ismael abu dayyah)
While some children have been evacuated from conflict, more than 1.1 million children in Gaza and 3.7 million in Haiti have been left behind to face the rampaging adult world around them.
Kevin ClarkeMarch 28, 2024
Easter will not be postponed this year. It will not wait until the war is over. It is precisely now, in our darkest hour, that resurrection finds us.
Stephanie SaldañaMarch 28, 2024