McCrory’s familiar, disturbing defense of discrimination

The Observer editorial board

In his 10-page lawsuit Monday against the U.S. Department of Justice, Gov. Pat McCrory offered a hauntingly familiar defense of North Carolina’s anti-LGBT law: HB 2 doesn’t discriminate against transgender individuals, because transgender identity isn’t really real.

That’s a rationale, legal and otherwise, that was used against gays and lesbians during their fight for equality. It’s no less disturbing now – and no more valid.

The governor’s complaint, filed in U.S. District Court early Monday, first argues a technicality – but an important one. Transgender people can’t be discriminated against under Title VII of the U.S. Civil Rights Act of 1964, McCrory says, because unlike blacks, women and other minorities, they are not recognized by Title VII as a protected class.

The governor cites several federal court rulings, from 2008 and earlier, that agree. But DOJ, which filed its own lawsuit later Monday, has recent court decisions on its side. Those include a U.S. Fourth Circuit Court of Appeals ruling last month that requires educational institutions to treat transgender students “consistent with their gender identity.”

To which the governor says: What gender identity? Regardless of whom Title VII might protect, McCrory says, HB 2 doesn’t treat transgender individuals differently from non-transgender individuals. “All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status,” the lawsuit contends.

In other words, if everyone just goes to the restroom that corresponds with their genitalia, what’s discriminatory about that?

It is, essentially, a denial that a transgender person has claim to a different “gender identity,” which is the same rejection that was made of gays’ and lesbians’ claim to “sexual orientation.” It’s not biology, the reasoning goes. It’s a choice.

Scientists and physicians disagree, including 20 pediatric endocrinologists from across North Carolina who wrote to McCrory last month urging him to consider the science behind gender assignment.

“There are babies born in whom chromosomes suggesting one sex do not match the appearance of the genitalia,” the doctors wrote, adding: “Our patients already face major medical and social challenges, and HB 2 creates unnecessary hardship.”

On Monday, the governor insisted on prolonging that pain, and in doing so, he also continues to jeopardize billions in federal funding for North Carolina. McCrory, however, tried to frame his lawsuit as a public service of sorts, saying it was an attempt to clarify who gets protection from discrimination, and who gets to decide.

The reality is that the governor and N.C. Republicans already made that decision. With HB 2, they decided Charlotte couldn’t protect gays and lesbians from discrimination, and that transgender individuals shouldn’t get to choose which bathrooms they use.

The arguments behind that law were made clear Monday: The Civil Rights Act doesn’t recognize transgender people, and our state doesn’t recognize a transgender person’s gender identity. Because if “gender identity” doesn’t exist, then neither does the discrimination in HB 2.

It’s a rationale that denies not only identity, but dignity. It should be rejected by the courts, and by the people of North Carolina.