Bathroom wars: North Carolina sues, gender is out, and sex is back in...

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Here are a few excerpts from North Carolina Gov. Patrick L. McCrory's lawsuit filed earlier today against President Obama's version of these United States. For a long time now, I've been convinced I'd never hear the word "sex" used again to refer to anything other than physical intimacy. But hey, along come the bathroom wars and look what we find...

Plaintiffs declaratory and injunctive relief against the United States of America ...for their radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees... The United States ...threatened legal action ...because plaintiffs intend to follow North Carolina law requiring public agencies to generally limit use of multiple occupancy bathroom and changing facilities to persons of the same biological sex. The Department contends that North Carolina’s common sense privacy policy constitutes a pattern or practice of discriminating against transgender employees in the terms and conditions of their employment because it does not give employees an unfettered right to use the bathroom or changing facility of their choice based on gender identity. The Department’s position is a baseless and blatant overreach. This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts. The overwhelming weight of legal authority recognizes that transgender status is not a protected class under Title VII. If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress.

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On March 23, 2016, the North Carolina General Assembly enacted the Public Facilities Privacy and Security Act (“the Act”). The Act created common sense bodily privacy protections for, among others, state employees, by requiring public agencies to require multiple occupancy bathroom or changing facilities to be designated for and only used by persons based on their biological sex. Biological sex is the physical condition of being male or female, and the Act notes that such condition is “stated on a person’s birth certificate.”

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Nonetheless, on May 4, 2016, the Department asserted in letters to Governor McCrory and Secretary Perry that state law as outlined above constitutes a “pattern or practice” of discriminating against transgender state employees by denying such employees access to the bathroom or other changing facility of their chosen gender identity.

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North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.

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Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541, at *6 (E.D. La. Sept. 16, 2002) (“[T]he phrase ‘sex’ has not been interpreted [by courts] to include sexual identity or gender identity disorders.”);

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Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1091-92 (5th Cir. 1975) (concluding that a grooming policy concerning hair length differences for males and females did not constitute sex discrimination and noting that such a policy relates “more closely to the employer’s choice of how to run his business than to equality of employment opportunity”).

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North Carolina does not treat transgender employees differently from nontransgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgendered status.

Bravo, North Carolina! It's an ill wind that blows nobody some good. In this brief, we see the bathroom wars forcing North Carolina to retreat from "gender" constructs back to the hard reality of sex and body parts. "Gender" is necessary and helpful in teaching languages and grammar, but its replacement of "sex" in discussions of reproduction and human intimacy the past thirty years has been nothing but destructive. 

From the beginning God made male and female. He did not make gays, lesbians, bissexuals, transsexuals, or the transgendered. That's what Jesus said.

Nor, for that matter, did He make zoophiles or pedophiles.

The only sane public policy concerning all matters sexual is one built upon the hard reality of sexual bifurcation, rather than the almost-unlimited plasticity of mens and women's pathological gender identities.

Tim Bayly

Tim serves Clearnote Church, Bloomington, Indiana. He and Mary Lee have five children and big lots of grandchildren.

Want to get in touch? Send Tim an email!