NC Restroom Deadline May Have Fatal Flaw

WASHINGTON - May 9, 2016 - PRLog -- In a letter the Department of Justice [DoJ] has given the governor of North Carlina and several officials a deadline of Monday afternoon to agree not to "comply with or implement" its own recently passed state statute governing who may use which state restrooms.

       However the demand, and the entire federal case, may have a fatal flaw which is seemingly being overlooked, says public interest law professor John Banzhaf.

       Even assuming that DoJ's interpretation of a very broad statute is correct in its specific but contested application to restroom use by transgender people, that doesn't mean that the interpretation automatically overrides a law passed by a sovereign state which deals specifically with this matter, says Prof. Banzhaf, raising a legal issue known as federal preemption.

       While federal law may in some instances override state statutes, courts have repeatedly held that, for this to happen, the intent of Congress to preempt state law must be very clear.

       In other words, courts will not lightly override the declared will of a sovereign state, especially in areas which have traditionally been left to the states, unless the Constitution or federal law clearly requires.

       As the Supreme Court recently put it:  "Intent can be inferred from a framework of regulation 'so pervasive . . . that Congress left no room for the States to supplement it' or where a 'federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject' [OR] state laws are preempted when they conflict with federal law, including when they stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"

       Needless to say, this is not an easy or automatic judgement to make, and the Supreme Court has had to make the final call on many different cases in recent years.

       The task is further complicated here because, unlike many other cases where Congress itself indicated its intent in the language of the statute, DoJ is relying primarily not upon the statute's language, but rather upon a guidance letter issued by regulators without opportunity for notice and comment, says Banzhaf, who has won over 100 discrimination legal actions, and has supported the rights of LGBT people.

       In a recent ruling, the 4th Circuit [which includes North Caroline] ruled in favor of a transgender person who wished to use a restroom based upon the gender mentally identified with, rather than one corresponding to anatomy.  In a preliminary ruling, the court ruled for the youth.

       But it relied not upon any 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 simply 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.  In any event, it was not a final ruling, but rather the case was remanded to the lower court for further proceedings.

       So there the court had no reason to address the issue of federal preemption, because there was no state statute which allegedly conflicted with a federal law.  That could be very different in North Carolina where DoJ is insisting that the state act contrary to a state statute - a situation not presented by this case.

       In any event, says Banzhaf, although many in the media have made much of the so-called Monday deadline, it is really nothing of the kind.  The DoJ letter simply says that if the state does not promise not to "comply with or implement" its own statute, the DoJ will "apply to the appropriate court for an order" assuring compliance with its demands.

       At that time, the state can impose its own legal arguments: e.g., that the stringent conditions for federal preemption have not been met, that the DoJ's interpretation of federal law is not correct, that there are other and better ways of preventing so-called discrimination against transgender people without permitting any anatomical male to share restrooms and showers with girls and women based solely upon his uncorroborated claim that he feels like a woman, etc.

       The courts will then weigh these and other legal arguments, decide whether the need for immediate action is so compelling that a preliminary injunction should be issued, or whether both sides should wait for a final judicial resolution.  In other words, there is little downside risk to North Carolina.

       Although there may have been few if any instances where a truly transgender [M2F] woman engaged in inappropriate behavior in a female restroom, the concern seems to be that any man could claim the right to use a female restroom, and defend himself if arrested there, simply by claiming this status.


http://banzhaf.net/  jbanzhaf@law.gwu.edu  @profbanzhaf