Sexuality and Gender Law Clinic Files Amicus Brief in U.S. 4th Circuit Court of Appeals Supporting Challenge to Law That Blocks Restroom Access for Transgender Men and Women
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New York, October 25, 2016—North Carolina’s law that excludes transgender men and women from restrooms consistent with their gender identity fails constitutional review, Columbia Law School’s Sexuality and Gender Law Clinic argues in an amicus brief filed today with the Fourth Circuit federal appeals court.
The law, passed in March 2015, tells all in the state that they can only use restrooms that match the sex marker on their birth certificate, even if that marker is inconsistent with their gender identity. It sparked immediate outcry from artists and business interests, prompting a boycott of the state for what many described as inhumane and discriminatory treatment of transgender people in the state.
Responding to a lawsuit by three transgender North Carolinians, all who study or work at University of North Carolina, a federal district court ordered the University to allow the three plaintiffs to use restrooms consistent with their gender identity. The court found a violation of Title IX, the federal law that prohibits sex discrimination in educational programs and activities.
But the court refused to grant preliminary relief based on the plaintiffs’ claim that the law also violates their constitutional equality rights, declaring that because the law did not cause problems for most people, it seemed to serve the state’s important interest in privacy and could remain in force while the case proceeds. The court wrote: “[I]t seems unlikely that a law that classifies individuals with 99.7% accuracy is insufficient to survive intermediate scrutiny.”
The Clinic’s brief asks the appeals court to reverse this part of the ruling, arguing that the lower court misapplied the governing law. “Equal protection jurisprudence and common sense both make clear that a constitutional violation does not become tolerable if its harms are isolated to a minority of the population,” it states.
“When a state imposes a severe burden on some in its population, like North Carolina does here to its transgender residents, there is cause for constitutional alarm,” said Suzanne B. Goldberg, Director of the Sexuality and Gender Law Clinic and Herbert and Doris Wechsler Clinical Professor of Law. “A law that requires transgender men to use the women’s room and transgender women to use the men’s room puts these men and women at risk of harassment and physical danger. The legal question is whether the state can justify this severe restriction based on its interest in preserving privacy – and the answer is that it cannot,” she added.
The plaintiffs in the case are represented by Lambda Legal, the ACLU, and Jenner & Block.
David J. Richards ’17 and Samuel Rosh ’18 assisted with the Clinic’s amicus brief.
Read the brief here: bit.ly/2dTCsev