By Bill Taylor
It seems to me that the current conflict over North Carolina’s law, commonly referred to as HR2, may well result in a major change in today’s society if the issue goes before the Supreme Court of the United States (SCOTUS). A primary issue surrounding the HR2 is a provision that restrooms and locker rooms may be used only by individuals whose sex entered on that person’s birth certificate matches that for which the facility is designated. In short, that means a person identified as “male” on an individual’s birth certificate may not use a restroom or locker room identified for females and vice versa.
This restriction is being challenged not only by the Lesbian, Gay, Bisexual, and Transgender (LGBT) folks and their supporters but by a number of businesses, colleges and universities, state and local governments, and now by the federal government which is claiming HR2 is unconstitutional and in violation of federal law. But what is a fundamental. underlying issue creating such an intense constitutional/legal conflict?
To understand this, we must go back to a decision pronounced by the SCOTUS in Plessy v. Ferguson in 1896 to the effect that establishing separate facilities for blacks and whites was valid under the equal protection clause of the Fourteenth Amendment as long as these facilities were equal. This concept of “separate but equal” was used to justify segregated public facilities for blacks and whites until the SCOTUS in the 1954 case of Brown v. Board of Education recognized “separate but equal” schools were “inherently unequal.”
The principle of “separate but equal” was further rejected by the Civil Rights Act of 1964 which, although primarily designed to protect the rights of African Americans and other minorities, not only bans discrimination because of a person’s color, race, national origin, or religion, but also sex. Included are the freedom to vote and use hotels, restaurants, theaters, parks, and all other public places and also addresses desegregation of public schools. It further grants jurisdiction to the district courts of the United States to provide relief against discrimination in public accommodations and authorizes the Attorney General to institute suits to protect constitutional rights in public facilities and public education. Now here’s the “hammer”. The act authorizes the withdrawal of federal funds from programs practicing discrimination – and that’s a powerful club to wield.
Okay, so what does this have to do with the current situation? HR2 bans employers and businesses from discriminating against employees or customers based on their race, color, country of origin, religion, age, or “biological sex”. It also, however, effectively invokes the principle of “separate but equal” in the usage of restroom and locker room facilities with the line of separation (or segregation) being an individual’s birth sex. One high ranking U S official has referred to this separation of sexes as a “return to the Jim Crow era of segregation laws.”
A specific case in point involves an individual whose birth sex is “female” but who wants to live like and be treated as a male including using the boys restroom at school – which would be prohibited by HR2. Challengers to this HR2 restriction allege it amounts to “de facto” segregation in public accommodations based on gender/sex and discrimination so based is specifically prohibited by federal law. (“De facto” is a Latin expression that means “in fact, reality, or actuality.”) What’s shaping up here is a conflict between biology and sociology.
Societies have long recognized and honored the biological difference between males and females by providing separate facilities for restrooms, bathing facilities, and locker/changing rooms and it is this biological distinction that HR2 is based on.
Modern sociology, on the other hand, holds that biological sex is not the overriding consideration in determining usage of these facilities – “sexual orientation” is. According to this philosophy , individuals may use the restroom, locker room, or changing facility in which they feel most comfortable because of their sexual orientation – and it is their constitutional right to do so. How about them apples?
Well, folks, if the “sexual orientation” argument holds up we may well see another major change in our society. Just as a SCOTUS decree now permits marriage regardless of the gender of the participants we may have a decision that prohibits “discrimination” in restrooms, locker rooms, and similar facilities based on “biological” sex or gender – and that possibility is not as far-fetched as one might think. At least that’s how it seems to me.