Transgender People Look to Federal Courts as Some States Restrict Rights

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Gender Fluidity Outpaces Current Discrimination Laws

Although Joaquín Carcaño’s birth certificate states that he was born a girl, that assignment doesn’t accurately reflect his male gender identity. That reality has become more evident since May 2015, when Mr. Carcaño began receiving hormone treatments that have deepened his voice and given him a more masculine appearance.

“As part of my social transition, I began using the men’s restroom at work and elsewhere in late 2015, which occurred without incident for the five months or so before H.B. 2’s enactment,” said Mr. Carcaño, whose employer is the University of North Carolina at Chapel Hill. House Bill 2 is a North Carolina law that reportedly banned transgender people like Mr. Carcano from accessing restrooms and other facilities consistent with their gender identity.

“I feel humiliated by being singled out and forced to use a separate restroom from all my coworkers,” Mr. Carcaño said. “Because using the special service elevator several times a day would attract even greater attention to the fact that I am not able to use the same restrooms as my coworkers, I have generally resorted to leaving the building and using a restroom in another building on-campus.”

In response, Mr. Carcaño filed suit in the North Carolina Middle District Court, alleging that North Carolina Governor Patrick McCrory, UNC and UNC Board of Governors are violating constitutional and statutory rights to equal protection, liberty, dignity, autonomy and privacy.

“Using the women’s restroom is not a viable option for Mr. Carcaño just as it would not be a viable option for non-transgender men to be forced to use the women’s restroom,” wrote attorneys in their challenge of H.B. 2.

The state of North Carolina has since repealed H.B. 2 and replaced it with HB 142, which blocks local governments from implementing nondiscrimination protections concerning transgender rights.

“The interest in maintaining boundaries between men and women in bathrooms is due to people having different levels of comfort with such a private act,” said Professor B. Jessie Hill, associate dean for academic affairs at Case Western Reserve University School of Law in Cleveland. “We are very much raised in the U.S. to be comfortable with these private moments around people of the same sex.”

Neither the governor nor UNC responded to a request for comment from PacerMonitor before press tIme.

In a September 30 decision, Chief District Judge Thomas D. Schroeder allowed Mr. Carcaño’s federal complaint to proceed.

“The court is hampered by the fact that the legislation is accompanied by no policy statement,” wrote Judge Schroeder in his opinion.

While there is a public accommodation law that applies federally, it doesn’t mention gender identity. 42 U.S. Code § 2000a states that all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion or national origin.

“Gender-neutral bathrooms are the wave of the future because it may not always be financially practical to have just single-person bathrooms for the owners of businesses, for example, who are required to comply with public accommodations law,” Ms. Hill told PacerMonitor.

As a result, etiquette for the rising trend of unisex public bathrooms where there is no division between male or female varies from state to state depending on local public accommodation laws.

“Owners of businesses that accommodate the public should familiarize themselves with whether there’s a public accommodations law in their state that allows people to use their bathroom based on gender identity or not,” Ms. Hill said. Second, if there is a state public accommodation law, a transgendered person who is discriminated against may have a right of legal recourse if it covers gender identity.

“In the absence of a state public accommodations law that covers gender identity, it’s up to the owner or manager of the establishment to determine who can use which bathroom,” said Ms. Hill.

Finally, if an individual is uncomfortable with a transgendered person using a particular gender-identified bathroom, it’s best to address it with the owner of the establishment rather than running the risk of a confrontation or lawsuit.

“Singling out vulnerable minority groups for discrimination is both wrong and unlawful,” said Tara Borelli, counsel with the Lambda Legal Defense and Education Fund, who was among the coalition of attorneys that filed Mr. Carcaño’s lawsuit.

At the core of the feud is Title IX law, which in 1972 outlawed gender discrimination in federally funded schools. Although it has an exception for certain contexts, such as sex segregation in bathrooms, it does not include a gender identity exception. Judge Schroeder’s recent opinion may set a new bar.

While the federal case is pending, the conclusion is clear that times have changed and targeting transgender people could cost a business or state dearly.

 

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