Transgender Fight Tests Reach of 1964 Law ; 'Sex' Found Its Way into Civil Rights Act Almost as an Accident

By Richard Perez-Pena; Tamar Lewin | International New York Times, May 12, 2016 | Go to article overview

Transgender Fight Tests Reach of 1964 Law ; 'Sex' Found Its Way into Civil Rights Act Almost as an Accident


Richard Perez-Pena; Tamar Lewin, International New York Times


The Civil Rights Act prohibits discrimination because of "race, color, religion, sex or national origin," but the word sex made it into the bill almost accidentally.

The legal battle over which bathrooms transgender people can use in North Carolina turns on a deceptively simple question: Can a law, written in the heat of the civil rights movement generations ago, apply to people the drafters never intended to cover?

The federal Civil Rights Act of 1964 was passed after years of marches, beatings, sit-ins and lynchings, part of the convulsive change across the country that gave African-Americans the same rights that white citizens had to drink at water fountains, get jobs, buy homes, stay at hotels and vote. A creature of its time, the law prohibits discrimination because of "race, color, religion, sex or national origin."

The word sex made it into the bill at the last minute, almost accidentally. It was inserted only after the drafting and congressional hearings, when the bill went to the House floor. Representative Howard W. Smith, a Virginia Democrat who opposed the bill, introduced an amendment adding sex discrimination, prompting laughter from his colleagues, who mockingly offered other suggested additions.

Despite speculation that Mr. Smith meant to weaken support for the bill -- he said his concern for women was sincere -- his amendment passed, and so did the act. The rights of transgender people never came up.

This is the history that Gov. Pat McCrory of North Carolina turned to when he sued the United States Justice Department on Monday, arguing that sex means biological sex, and nothing more. "The Obama administration is bypassing Congress by attempting to rewrite the law," he said.

But the Justice Department said the word also covers gender identity, not just anatomy, and filed its own lawsuit charging that a North Carolina law allowing people to use only those public bathrooms and locker rooms that correspond to their biological sex violates both the 1964 law and a 1972 federal law barring sex discrimination in education. In explaining her case, Attorney General Loretta E. Lynch also harked back to the civil rights struggle.

"It was not so very long ago that states, including North Carolina, had other signs above restrooms, water fountains and on public accommodations, keeping people out based on a distinction without a difference," she said. "We have moved beyond those dark days, but not without a tremendous amount of pain and suffering and an ongoing fight to keep moving forward."

Courts have often expanded the interpretation of laws in ways that the authors never imagined, to answer questions that earlier generations never thought to ask. For example, the Supreme Court's ruling last year legalizing same-sex marriage was based on the 14th Amendment to the Constitution, adopted to protect black people after the Civil War.

That kind of thing infuriates conservative "strict constructionists." But as a practical matter, courts are often less interested in asking whether the meaning of a law can be stretched than in asking how far. Advocates for transgender rights say the Justice Department's case is less of a stretch than some others they have supported. …

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