I held off on posting on North Carolina’s ongoing discriminatory practices for a week, this time focusing on gender discrimination. This Robert A. Sedler piece encapsulates my stance. I should tell my readers right now that the North Carolina legislature cannot justify this emergency legislation by citing a substantial frequency of toilet attacks. Rather than promoting the interests of impoverished minority by restricting voting rights, this legislation aims to disenfranchise yet another aspect of our society. The transgender community is the target this time. The rule of law and a constitution govern our existence. We have depended on the constitution to uphold individual rights and prohibit discrimination against individuals and groups based solely on their identity throughout the history of our country. The Supreme Court ruled that the government cannot discriminate against people based on their ethnicity, gender, or sexual orientation. More recently, the court concluded that discrimination against unmarried children is prohibited under the constitution. The court ruled only last year that same-sex individuals’ basic right to the institution of marriage is protected by the constitution in a number of instances, including the Michigan case of Deboer v. Snyder. The state had no justification for denying same-sex couples the ability to marry, the court reasoned, and the prohibition on same-sex marriage caused substantial injury to these couples and their children. However, as soon as the Supreme Court invalidates one kind of discrimination, a new one always appears. People who declare their right to a gender identity distinct from their natal gender are the target of prejudice today. In my view, the government cannot legally discriminate against individuals based only on their gender identity, and the constitution should uphold everyone’s freedom to choose their own gender identity. Discrimination based on gender identity exists, just as discrimination based on race, gender, and sexual orientation has taken many forms. The new North Carolina legislation, which mandates that individuals use the public toilet for the gender specified on their birth certificate even when they now identify as the opposite gender, is one of the most egregious examples of this discrimination. The legislation is manifestly unenforceable. The authorities will not station guards at public bathrooms to snoop around people’s genitalia before they enter. However, the law’s enactment aims to denigrate transgender people in the same way that laws in southern states that forbade African Americans from using restrooms designated for white gentlemen and colored women from doing the same once denigrated them. The state’s absurd assertion that the ban is required to stop sexual predators from entering women’s toilets exacerbates the denigration of transgender people. According to the Supreme Court, as long as the Constitution endures, people in every generation can invoke its principles in their own search for greater freedom, and it is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. It goes without saying that this area of personal liberty must encompass everyone’s freedom to choose their gender identification and their freedom from discrimination on the part of the state. The creator of www.superiorcourtblog.com is Los Angeles-based civil rights attorney Sean Erenstoft. Contact erenstoft at www.erenstoft.com for further information.
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