Gender Identity ‘Bathroom Bills’ Battles to Continue in 2017
At least four states have filed legislation to restrict use of public restrooms to biological sex.
CHARLOTTE, North Carolina — Whether men can use women’s public restrooms, or teenage boys should be allowed to play for their high school girls’ basketball teams, will be the kinds of questions facing elected officials, school administrators and judges across the United States in 2017.
In at least four states, so-called “bathroom bills” — legislation to restrict the use of public restrooms to one’s biological sex — have recently been filed. And elected officials in other states, notably Texas, have said they will also make enacting legislation a priority in the coming year.
Those bills are similar to a law the North Carolina General Assembly passed and Gov. Pat McCory signed in March 2016, after the Charlotte City Council enacted a local anti-discrimination ordinance to allow people to use public restrooms that correspond to their chosen gender identity.
“When you look at what the city of Charlotte did in North Carolina, they were itching for a fight,” said Robert Destro, director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law.
The North Carolina law generated months of intense national criticism and threats from corporations, such as Apple and Google. Other companies cancelled planned expansions in the state, and sporting events were moved to other states, causing an estimated loss of $600 million in economic activity.
Despite some indications that lawmakers would rescind the measure in a special legislative session on Dec. 21, the North Carolina law remains in place, prompting the president of the National Association for the Advancement of Colored People (NAACP) state chapter to say he will ask the national organization to call for an economic boycott of the state.
Gerard Bradley, a professor at the University of Notre Dame who teaches legal ethics and constitutional law, told the Register that one can criticize the transgender ideology fueling the anti-North Carolina sentiment without referencing religion.
“It really is an ideology completely unmoored from science, and even from reality,” said Bradley, who is writing an amicus brief in a pending transgender case before the U.S. Supreme Court.
Destro, who has written about the intersection of constitutional law and the homosexual and transgender rights movements, told the Register that people who oppose those ideologies as being incompatible with the truth of human nature and sexuality have been put in a difficult spot because activists for those causes, aided by a sympathetic national media, have sought to capture the moral high ground in the debate.
“So the question becomes: What exactly is the obligation of someone who doesn’t buy it?” said Destro, speaking of transgenderism. “Do people have to treat it as a norm and treat people according to their gender identity? Then you run into serious questions, like [about who can use or join] locker rooms and sports teams. The same thing has happened in the military, with the whole idea of the government having to pay for [sex-change] surgery, and there is some debate [over] whether or not that surgery is even ethical.”
Despite some studies that show gender-transition surgeries can harm patients with gender dysphoria, the federal government under President Barack Obama has thrown its full support behind those medical procedures and the transgender movement in general.
In 2016, the Obama administration, through a U.S. Department of Education opinion letter, said public schools must allow students to use bathrooms that correspondent to their chosen gender identity, or face possible cuts in federal funding. Also, the U.S. Department of Health and Human Services (HHS) promulgated new regulations that essentially require all employers to include gender-reassignment surgeries and related hormonal treatments in their employee health insurance plans.
The regulations, enacted by HHS in May 2016, interpret existing provisions in federal civil-rights law that prohibit discrimination on the basis of sex — or biological gender — to also incorporate so-called gender identity and sexual orientation, despite the fact that Congress has repeatedly refused efforts to amend the laws to include that language.
“What is clear is that Congress never intended the word ‘sex’ in any civil-rights act at issue here to include gender identity,” said Martin Nussbaum, an attorney who represents churches and religious organizations in religious-liberty cases.
Religious Freedom Attack Continued
Nussbaum is representing the Catholic Benefits Association in a federal lawsuit, filed on Dec. 28, that challenges the HHS regulations and related rules from the U.S. Equal Employment Opportunity Commission (EEOC), as violating the First Amendment, the Religious Freedom Restoration Act and other federal laws.
The lawsuit includes as a plaintiff the Diocese of Fargo, North Dakota, which received notice last fall from its health insurance company that, beginning on Jan. 1, 2017, the diocese’s sponsored employee health plan would provide coverage for gender dysphoria and would include gender-reassignment surgery.
Nussbaum told the Register that the regulations would even require dioceses, religious orders and other Catholic employers to cover surgical abortions in their health plans. The lawsuit says that EEOC and HHS have created an “Abortion and Comprehensive Transgender Services (ACTS) Mandate” that interprets Title IX — a 1972 law barring sex discrimination — as prohibiting discrimination based on gender identity and termination of pregnancy.
“By redefining ‘sex’ to mean both ‘gender identity’ and ‘termination of pregnancy,’ the Obama administration is not only trying to sidestep Congress and impose radical new health care mandates on hospitals and employers, it is creating a moral problem for Catholic employers that must be addressed,” said Baltimore Archbishop William Lori, who is also chairman of the Catholic Benefits Association. In a press release announcing the lawsuit, the archbishop noted that Congress and the courts, for decades, have understood the term “sex” in federal law to mean biological sex, male and female.
According to the lawsuit, none of the HHS or EEOC rules have a religious exemption or grandfathered plan exemptions, meaning that institutions across the Catholic spectrum — such as dioceses, schools, hospitals, colleges and closely held businesses — have to perform or pay for medical procedures that contradict Catholic teaching.
Nussbaum said the “continued assault on religious freedom” by the Obama administration — which already pushed a contraceptive mandate through HHS — is “mystifying.” He noted that the EEOC has filed an amicus brief in a lawsuit brought by the ACLU on behalf of a man suing Dignity Health because it would not pay for his gender-reassignment surgery.
“Under the analysis of RFRA (Religious Freedom Restoration Act), a very important statute that would be relevant in these circumstances, once Catholic employers establish that the ACTS Mandate burdens their religious exercise, the government then has to prove that they have imposed this burden on religious freedom with the least restrictive means available,” said Nussbaum, who argued that the government would fail the RFRA test that it has a compelling interest and that there is no less burdensome way of accomplishing that interest.
Cases Before U.S. Supreme Court
The question of whether gender identity should be a protected class in federal civil-rights laws could at some point find its way to the U.S. Supreme Court. In October, the high court agreed to hear arguments in a lawsuit filed by attorneys representing a Virginia teenage girl who identifies as a boy but was denied permission by her local school board to use the boys’ restroom at school.
“If the court finds that gender identity is protected as sex, that would be quite problematic for religious freedom, because of the resulting confusion it would create over conduct and identity,” Nussbaum said.
But the pending case before the high court — Gloucester County School Board v. G.G. — may rest on more technical legal issues, such as how much deference the courts should give to the U.S. Department of Education’s “Dear Colleague” opinion letter and whether the department’s interpretation of federal civil-rights laws and a 1975 regulation pertaining to separate bathrooms, locker rooms and showers for boys and girls should be given effect.
“If the Supreme Court agrees to review the case as a purely administrative law question, which looks like they did, then [the ruling] is going to have less impact, especially given the upcoming change in administrations,” Destro said.
President-Elect Trump’s Stance
On the campaign trail and since the November 2016 election, President-elect Donald Trump — who is seen as friendly to the homosexual community and has said he believes the U.S. Supreme Court’s ruling on same-sex “marriage” is settled law — has not spoken out much on transgender rights.
In April 2016, Trump waded into the issue during a town-hall event, when he answered a question on the North Carolina law and said that people should “use the bathroom they feel is appropriate.” Trump also said Bruce Jenner, the former Olympic athlete who now identifies as a woman, would be welcome to use whatever bathroom he preferred in one of Trump’s luxury buildings.
Joshua Mercer, political director of CatholicVote.org, told the Register that he does not believe Trump will make it a priority to focus on legislation related to religious freedom and the transgender movement. Such legislation would face a steep climb in the U.S. Senate anyway, Mercer said.
“There might be some executive orders from the Obama administration that [Trump] repeals, but that might be the extent of what he does,” Mercer said.
Nussbaum said the Trump administration could rescind the U.S. Department of Education opinion letter, as well as rescind the HHS transgender rule or revise the regulation to grant a broad religious exemption. But Nussbaum added that there are some things the incoming administration will not be able to undo.
Said Nussbaum, “There is now some precedent out there where courts are following the regulation issued by the Obama administration and saying, ‘We, too, as a court, interpret these statutes to say the same thing the regulations say.’ That’s why the Catholic Benefits Association [filed suit] — the only choice it had to serve its members was to seek judicial relief.”
Religious Leaders Push Back
Despite what may happen on the political and judicial fronts, dozens of religious leaders and intellectuals are making it known that they oppose government coercion or censorship of citizens who have biblical views on human nature and sexuality.
In December, 75 religious leaders signed the statement “Preserve Freedom, Reject Coercion,” which argues that efforts to include sexual orientation and gender identity as protected classifications in federal anti-discrimination laws have threatened basic freedoms of religion, conscience, speech and association. Those efforts, the signatories said, “violate privacy rights and expose dissenting citizens to significant legal and financial liability for practicing their beliefs in the public square.”
The statement’s signatories include Archbishop Charles Chaput of Philadelphia, Archbishop Lori of Baltimore, Bishop Frank Dewane of Venice, Florida, and Bishop George Murry of Youngstown, Ohio.
Bradley, the Notre Dame law professor, also signed the statement. He told the Register that many people, including doctors and counselors, are being “conscripted into unsound therapies” and forced to cultivate “gender-affirming environments” that may be mandated in schools and other facilities. The dominant strand of transgender ideology, Bradley said, argues that boys who identify as girls are really girls trapped in boy’s bodies and vice versa.
“That is all contrary to science, of course,” Bradley said. “But it means, too, that believers are being conscripted into going along with and promoting a metaphysics of sexual identity as male and female which is contrary to revelation.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.