Earlier today North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against each other asking a federal judge to determine rights under Title VII of the Civil Rights Act (prohibits employment discrimination), Title IX of the Education Amendments of 1972 (prohibits sex discrimination), and the Violence Against Women Reauthorization Act of 2013 (VAWA).
The two complaints focus on a recently-enacted NC state law—the Public Facilities Privacy and Security Act (the “Act”) aka HB 2. That law provides privacy protections for, among others, state employees, by requiring public agencies to require multiple occupancy bathroom or changing facilities be designated for, and only used by, persons based on their biological sex.
In the first complaint, the state of North Carolina seeks a declaration that its state law on bathroom and changing facilities is compliant with Title VII and VAWA. In the second complaint, the United States (through the Department of Justice) contends the state of North Carolina, the North Carolina Department of Public Safety, the University of North Carolina, and the Board of Governors of the University of North Carolina have violated Title VII, Title IX, and VAWA–largely on the grounds the NC law does not allow one to use a public bathroom (or changing facility) in accord with one’s gender identity. Not discussed here is a third complaint also filed today by the NC President pro tempore of the Senate and NC House Speaker against the federal government.
Once the noise and chatter dissipate, the bottom line for Title VII (enacted in 1964) and Title IX (enacted in 1972) will be—what does the prohibition of discrimination on the basis of “sex” mean? Does “sex” mean biological sex or does it sweep more broadly to encompass gender identity, regardless of one’s anatomy? What does the legislative history reveal? Ultimately these will be questions for the Supreme Court.