Justice Department: Men Can Be Women Too

The Story: On Wednesday the Justice Department sent a letter to North Carolina Governor Pat McCrory warning that the state’s recently enacted House Bill 2 violates Title VII of the 1964 Civil Rights Act.

A similar letter was sent to the University of North Carolina claiming that the new law violates Title IX, and to the North Carolina Department of Public Safety stating the law amounts to a violation of the Violence Against Women Reauthorization Act.

The Justice Department has given the governor until Monday, May 9, to respond.

The Background: House Bill 2 is an “act to provide for single-sex multiple occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations.”

The law enacts a statewide policy banning individuals from using multiple-occupancy public bathrooms that do not correspond to their biological sex listed on their birth certificate, while allowing schools and agencies to provide single-occupancy bathrooms and changing facilities. (As North Carolina has clarified, “This law simply says people must use the bathroom of the sex listed on their birth certificate. Anyone who has undergone a sex change can change their sex on their birth certificate.”)

The Obama administration claims that HB 2 discriminates based on sex because “gender identity” is included under the category of sex and that “access to sex-segregated restrooms and other workplaces facilitates consistent with gender identity is a term, condition, or privilege of employment.” (Although the Fourth Circuit Court recently acknowledged, “the word ‘sex’ was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed ‘biological sex,’ namely reproductive organs,” they determined that the Obama administration’s interpretation of the word “sex” in Title X to include “gender identity” was permissible.)

Why It Matters: While it may be tempting to dismiss this news as the latest skirmish in the “bathroom battles”—the new front line of the culture war—the underlying logic of the Justice Department’s decision is deeply troubling, and could be a setback for the civil rights of women. If gender identity is included under the category of “sex,” then the law may no longer protect biological women. Here’s why.

The position of the Justice Department is that people have both a right to such employment conditions as sex-segregated bathrooms and that a person’s “sex” is whatever they choose as their “gender identity.” But the majority view of the LGBTQIA community—which the Obama administration is promoting—considers gender to be a trait that exists along a continuum.

Transgenders can thus be bigender (move between feminine and masculine gender-typed behavior depending on context), trigender (shifting between male, female, and a third gender), pangender (all genders at once), or genderqueer (a catchall for people who consider themselves any of the subsets of transgender, such as genderless, pangender, etc.), or numerous others. (On Facebook you can chose one of 51 gender identity options.)

If gender identity is included under sex, then someone who is bigender/trigender/pangender/genderqueer, and so on, could use any sex-segregated restroom—or switch between the men’s room and the woman’s restroom whenever they like. The law would not be able to make any distinction or force them to choose when they are a “man” or when they are a “woman.”

But who cares, right? Some people may argue that the transgender population is so small that it won’t really have much affect on the restrooms at most workplaces. And they are probably right. The most significant problem, though, is not with deciding who gets to use what bathroom but with the elimination of any standards between men and women when it comes to employment. By making sex a fluid option, it removes the reason why sex was included under Title VII in the first place: to protect biological women from discrimination.

Let’s consider an obvious example of a biological difference between men and women that can affect the workplace: lifting heavy objects. As the World Health Organization says, “Men are on the average taller, larger, and heavier than women, contributing to sex differences in a number of other important health-related variables such as average blood volume and oxygen consumption. The same physical load may exert greater strain on the average woman than on the average man, since women’s average lifting strength is only 50 percent of men’s.”

The International Labor Organization recommends limits of between 26 and 44 pounds for women and between 33 and 88 pounds for men. But in the United States there is no law that limits how much a person can lift on the job; the law merely says that you can’t stereotype based on sex. As the American Bar Association explains,

Anti-discrimination laws require employers to consider applicants as individuals, not based on stereotypical assumptions. If a factory job requires a worker to lift 40 pounds on a regular basis, an employer cannot express a preference for young male applicants based on the stereotyped notion that men are strong and older people and women are weak. Some women and older people can lift 40 pounds, just as some young men cannot. Rather, the employer's job ad should state that the job requires “regularly lifting 40 pounds.”

Let’s imagine a company sets a requirement—intended to screen out biological women—that employees must occasionally be able to lift 75 pounds. Few biological women could meet that requirement. But under the Justice Department’s definition of “sex” there would be nothing discriminatory since a “women” who was, say, a bigender man (i.e., a biological male) could meet the requirement. It wouldn’t even matter if the company didn’t have any transgender people on staff. The mere fact that some “women” (i.e., men) could meet the requirement would mean it wasn’t discriminatory. (Also, it would be discrimination to make the men reveal if they had a “fluid gender identity” so the lack of openly transgender employees couldn’t be used against the company.)

This is admittedly a simplistic example, but there are myriad serious ways the law will undermine the advances women have made in seeking equal treatment in the workplace. When men can identify as women (and employers can’t ask them if they are or assume they don’t identify as a woman), then the standard for proving discrimination against actual biological women is raised impossibly high.

This problem may not erupt immediately. It may take years or even a decade before the inexorable logic of the “gender identity” movement seeps into the cultural conscience and takes effect. People may deny it today, just as many people denied in 1964 that the term “sex” in Title VII would be used to protect men who “identify” as women. But eventually, as we’ve repeatedly seen over the past few years, what seems like impossibilities quickly become inevitablities.

Scripture says “male and female he created them” (Gen. 5:2). It is this simple, obvious truth that culture is rebelling against and that we need to continuously defend.

“The differences between men and women are rooted in divine design,” Kevin DeYoung says. “This is clear from 1 Timothy 2 and from Genesis 1-2. Complementarianism is not about Paul accommodating to a patriarchal first-century culture, let alone about us accommodating the expectations of our cultures inside or outside the church. God has something to say about manhood and womanhood. And what God has to say is rooted in what he designed.”

This is why complementarianism is not merely about “submission” within the family. It’s also about protecting women from a culture that worships male power and disdains femininity, and has no qualms about using the LGBTQIA movement to codify advantages for men into the law.

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