The question at the heart of the showdown between the federal government and North Carolina over the state’s HB2 law is whether Congress intended “sex” discrimination to cover transgender Americans or “gender identity” when it passed the Civl Rights Act of 1964. But it seems Congress didn’t spend a whole lot of time pondering what would, in fact, be covered by the term because members were too amused by how preposterous the notion of “sex” discrimination was, reports the New York Times.
The word sex made it into the bill at the last minute, almost accidentally. It was inserted only after the drafting and congressional hearings, when the bill went to the House floor. Representative Howard W. Smith, a Virginia Democrat who opposed the bill, introduced an amendment adding sex discrimination, prompting laughter from his colleagues, who mockingly offered other suggested additions.
Despite speculation that Mr. Smith meant to weaken support for the bill — he said his concern for women was sincere — his amendment passed, and so did the act. The rights of transgender people never came up.
Oh, so very Mad Men, no? Anyway, turns out sex discrimination is a real thing. Who knew?
The 1964 law’s ban on sex discrimination was applied narrowly at first, but the Supreme Court broadened it in a series of rulings saying that sex discrimination includes sexual harassment, that the law protects men as well as women, and that discrimination against a person for not adhering to sex stereotypes in appearance is sex discrimination.
In a 1986 ruling, Justice William H. Rehnquist noted the unusual way that sex discrimination made its way into the Civil Rights Act, and wrote, “We are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’”
North Carolina lawmakers have repeatedly accused the federal government of “overreach” and trying to “rewrite” the law. In fact, the meaning of the law has evolved over time, with several courts concluding that “sex” discrimination does cover transgender individuals.
The Supreme Court has not addressed whether the same language protects transgender rights, but several lower courts have. In 2004, the United States Court of Appeals for the Sixth Circuit found that it does, and some other courts have since agreed. But in 2007, the United States Court of Appeals for the 10th Circuit made the opposite finding.
In 2011, the United States Court of Appeals for the 11th Circuit ruled that discriminating against a transgender person was sex discrimination — not based on the civil rights statute, but based on the 14th Amendment. And last month, relying on a 1972 law, Title IX, the United States Court of Appeals for the Fourth Circuit ruled that a high school must allow a transgender student who was born anatomically female to use the boys’ bathroom.
But a civil rights lawyer for the ACLU who specializes in transgender issues says the government’s interpretation doesn’t even hinge on the term “gender identity,” which North Carolina Republicans have maligned as some sort of fabrication that’s clearly not covered by federal statute.
“The criticism on the right is often that there is no grounding in the text of the law, but in this case, I would argue there is,” said Chase Strangio, a lawyer with the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender and HIV Project. The North Carolina dispute is about who is really a man or a woman, he said, so “there’s no question it’s about sex.”
One thing that’s worth keeping in mind amid this complicated mix is that the 1964 civil rights law only covers “sex” discrimination in employment, housing, and education, but not public accommodations (it was probably just too laughable at the time). The federal government is claiming HB2 violates Title VII of the Civil Rights Act of 1964 (i.e. employment) and Title IX of the Education Amendments of 1972.