The New Potty Panic: The Complications of North Carolina’s “Public Facilities Privacy & Security Act”

The main effect of North Carolina Session Law 2016-3, commonly known as the “Public Facilities Privacy & Security Act”, has very little to do with the rhetoric surrounding its passage. As an original meaning originalist, I note that the most important operative portion of this law is its definition of “biological sex” and acceptance of that trait as a suitable characteristic for determining the propriety of discrimination.

First, allow me to note that this law applies only to public agencies and public educational facilities. It does not create a requirement for private operated public accommodations to discriminate on the basis of biological sex. Private operators would seem to retain the right to designate their facilities as inclusive.

The more I think about this law, the more I believe that, despite the protestations of those who opine this law is “blatantly unconstitutional”, the law may in fact pass the highest standard of legal review, strict scrutiny. The crux of this issue is whether or not discrimination in public accommodations where nudity is practically unavoidable and where vulnerability is arguably heightened is permissible on the basis of “biological sex”, in this case, “which is stated on a person’s birth certificate”.

The law does not, as many believe, specifically target all trans people. It targets only a subset of trans people. The law defines “biological sex” as that “which is listed on a person’s birth certificate”. This means that, legally speaking, any trans person who has had the benefit of obtaining corrected or amended documentation of birth, such as myself, is insulated from the effects of this law, and that only those who have yet to obtain a corrected or amended birth certificate are affected. However, it should not go unsaid that the attempt to enforce this law will create undue burdens for a great many more people, both cis and trans, than anyone’s conscience ought to tolerate.

Contrary to popular belief, there are few laws in the American tradition criminalising the presence of any individual in a sex- or gender-segregated facility not intended for their sex/gender. One of the reasons for this is that societal taboos against such things are so strong that probably people do not feel any particular need to codify them, or at least did not until the apparently horrifying spectre of transgender and transsexual people entered their field of view.

It is virtually unquestioned in the American tradition whether or not the state has a legitimate interest in the assignation and documentation of sex/gender. This means the law immediately passes the rational basis test. Nowhere in American law or jurisprudence has it been established that the courts regard gender identity as a protected suspect class, save for the Matthew Shepherd Hate Crimes Act. As a result, it is extremely unlikely the courts would regard the ability of an individual to change their sex/gender or otherwise assert their gender identity as a “fundamental right” vis-a-vis Lutz v. City of York, PA, which established the standard for fundamental rights as being those which are “implicit in the conception of ordered liberty” and which are “deeply rooted in the Nation’s history and tradition”. This rules out strict scrutiny as a standard of review.

However, even if we stipulate strict scrutiny, this law can be argued to meet that standard, given that since NC allows birth certificate changes, the law may be said to be narrowly tailored, and the least restrictive means of accomplishing the legitimate and compelling governmental interest in the assignation of sex/gender.

The only available avenue of challenge may end up being whether or not it is permissible for any state to require proof of genital surgery as a precondition for amending a birth certificate, given the current state of medical and psychiatric understanding of the phenomenon of sex/gender, but this is not a direct challenge to NCSL 2016-3, particularly because while such a challenge might be resolved within North Carolina by the state courts, which would obviously have first jurisdiction, it would require a federal court to impose that standard nationwide. After all, not everyone subject to this law will have been born in North Carolina.

It is possible, given that at least a few states have already accepted the idea of changing sex/gender without proof of genital surgery, that the courts might, in fact, impose a federal standard, but I rather doubt even the SCOTUS is going to find at this point in history, sufficient cause to realise, as in Obergefell v. Hodges, a new understanding of the requirements of liberty, if the courts even find that any case has standing or that the court itself has jurisidiction over the question.

I would like to quote Female by Operation of Law: Feminist Jurisprudence and the Legal Imposition of Sex, Matthew Gayle, William & Mary Journal of Women and the Law, Volume 12, Issue 3 (2006), The College of William & Mary Law School:

‘ Every state and territory of the United States requires sex categorization to be determined at birth and then recorded with an agency charged with the collection of vital statistics. This initial sex designation follows each individual throughout her or his life, stamped upon driver’s licenses, passports, marriage certificates, and numerous other legal documents. As previously noted, this designation is not without consequence. Once set, an individual’s sex designation may not be easily altered, and may not be altered at all in some jurisdictions.

There is no consistent legal standard for determining a person’s sex once it is in dispute. Courts have consistently maintained the right to designate a person as male or female, even over that person’s objection, sometimes with quite unexpected results. Unlike judicial race determination in the nineteenth century, determination of an individual’s sex has not been reserved for juries as a question of fact; rather, American courts have determined sex categorization as a matter of law.

The result of determining an individual’s sex is not to ascertain the truth about an unclear state of affairs; it is to create that state of affairs through judicial fiat. In other words, in deciding that an individual is male or female, a judge does not review evidence of the body to determine where sex is written upon it or made clear. Rather, the judicial determination is what writes sex onto the body.

The effect of using two different terms within society and the law is merely to distinguish between those cultural expectations we legitimize (sex) and those we do not (gender). Instead of arguing that all females must be feminine, courts now view sex and gender as distinct, and understand that females need not be feminine. This shift prevents us from asking the more fundamental question: whether all people who have XX chromosomes, vaginas, and ovaries need be female. Presenting gender as socially constructed allows the continued assertion that sex is natural. This distinction is reflected in the law. ‘

One thing is absolutely certain: this law was crafted specifically to forestall future legal challenges. The text of the law as enacted as North Carolina Session Law 2016-3 may be found at:

http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf

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