Govt Transgender Restroom Warning to NC May Be Wrong
Federal Preemption of State Law Requires More Than a Guidance Letter WASHINGTON, D.C. (May 5, 2016): The Department of Justice [DoJ] has just sent a stern letter warning that a North Carolina law stating – with no enforcement mechanism or penalties – that persons with gender dysphoria should use a restroom which corresponds to their anatomy, is illegal.
But this may well be incorrect since preemption of state law requires far more than a guidance letter issued without opportunity for notice and comment, says public interest law professor John Banzhaf.
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While federal statutes may override state statutes in many areas of law, courts have repeatedly held that, for this to happen, the intent of Congress to preempt state law must be very clear, either in the text of the legislation itself, or by unambiguous legislative history.
Transgender Restroom – Banzhaf, an advocate has a better idea
Here there is neither, says Banzhaf, , who has won over 100 discrimination legal actions, and has supported the rights of LGBT people.
In this situation, the Court of Appeals for the 4th Circuit based the ruling upon which DoJ relies not upon any such language in any federal statute – i.e., Title IX, which expressly permits restrooms segregated by gender – nor even upon a regulation which had been adopted in accordance with the normal procedure provided by federal law which permits public comments before rules are issued.
Rather, it said that the lower court, which had rebuffed a student’s complaint over restroom usage, did not give sufficient deference to a so-called guidance document issued by the Department of Education [DoE] – essentially an opinion on what a regulation means – but not a law in which Congress has clearly expressed its desire to override state law in an area traditionally left to the states.
So, if Banzhaf is correct, and federal preemption does not apply to restroom usage issues, it may encourage state legislators concerned about anatomical males using restrooms assigned to females – based solely upon their stated gender preference – to pass laws prohibiting such conduct, perhaps applicable not just to governmental entities including schools, but even to private businesses.
Banzhaf suggests that a much simpler, less controversial, and more practical solution to the restroom issue – a win, win, win, for all concerned – would be to use the technique being pioneered in his own law school: an “All Gender” restroom described in “North Carolina Bathrooms: Limits Transsexuals, But GWU Has Better Solution.” http://bit.ly/