North Carolina Restrooms – Issue May be Accommodation, Not Discrimination
Why Not Consider Discrimination Against Transvestites and Most Women?
WASHINGTON, D.C. (May 9, 2016): North Carlina has sued the federal government in response to a Department of Justice [DoJ] threat to sue over the state’s restroom policies.
While some have argued that North Carolina’s new law discriminates against transsexual individuals, the state’s suit appears to argue in part that the issue is really accommodation rather than discrimination, notes public interest law professor John Banzhaf, who has successfully litigated over 100 discrimination and accommodation cases, and who supports the rights of transgender people.
There is a difference between discrimination and accommodation, says Banzhaf, and it can easily be illustrated by the way most law schools deal with professors who use wheelchairs.
If a law school simply refused to hire a law professor because he was in a wheelchair, that would be a clear case of discrimination which is prohibited by law. But once such a person has been hired, the issue becomes one of reasonable accommodation, not discrimination.
Since many law schools use tiered or amphitheater classrooms so that students can more easily see and hear each other, in many cases it would be impossible for a professor who uses a wheel chair to go down the steps leading to lectern in the well of the classroom.
So most law schools have designed one or two classrooms to permit the person lecturing to reach the lectern without using the tiered stairs which are in most classrooms, and classes taught by professors in wheelchairs are scheduled for such special classrooms.
However, it is usually too difficult and too expensive to reconfigure all classrooms to be accessible to professors in wheelchairs. But the schools then can and do argue that, so long as every professor in a wheelchair is able to easily teach all of his classes in these special classrooms, they have made at least a reasonable accommodation, and therefore have fulfilled their legal responsibilities.
Requiring that all classrooms be accessible to professors in wheelchairs would be so difficult and expensive that it might not be seen by law to be reasonable. The same arguments can be made regarding transsexual people seeking to use restrooms.
If there are a reasonable number of single-user restrooms which they can use without having to contradict their gender identify or be as risk, this may be a reasonable accommodation.
By analogy to the law school situation, requiring half of all the restrooms (e.g., those for females) to accommodate their special needs might not be reasonable, at least in many situations.
The requirement of reasonable accommodations must also consider the impact on others.
North Carolina argues that permitting any anatomical male to walk into and use restrooms and showers designed for girls and women, solely based upon his unsubstantiated claim that he feels like a woman, would both unreasonably infringe on the sexual privacy and privacy expectations of the traditional female users and also increase the risk of sexual assault, including rape.
Therefore such an accommodation might not be required by federal law because it goes far beyond being reasonable. Similarly, North Carolina might also note that the current design of restrooms in most public places often forces women to wait much longer than men – a discrimination based upon their gender – but that DoJ has taken no action to correct this related form of discrimination.
Likewise, transvestites, including many men who consider themselves to be men, who are now forced to use male restrooms even when dressed as females, are not protected by the DoJ.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
