fbpx

Will Judges Debate the Layout of Shower Areas?

Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.

The case, Carcaño v. McCrory, presents an Equal Protection challenge to HB2, the North Carolina law requiring, inter alia, people to use the intimate facilities that correspond with their physiological sexes. Judge Thomas D. Schroeder enjoined the law on statutory grounds, constrained as he was by the preposterous conclusion of the U.S. Fourth Circuit Court of Appeals, since stayed, that the Education Department rightly applied Title IX of the Education Amendments of 1972 to gender identity in addition to biological sex.

Significantly, though, Schroeder said it was unlikely that a challenge to the law would prevail on Equal Protection grounds. He arrived at that conclusion by subjecting HB2 to intermediate scrutiny, a standard falling murkily between the looseness of the rational-basis test and the narrow-tailoring requirements of strict scrutiny.

Intermediate scrutiny requires that a  law being challenged in court serve “important governmental objectives” to which it is “substantially related.” HB2 plainly does. The important governmental objectives: the privacy of the 99.7 percent of people who Schroeder notes are not transgender; and the safety of everyone, including transgender people, who might be at risk if predators self-designated their genders in order to gain access to bathrooms, locker rooms, or showers.

As a district judge, Schroeder had no choice but to limit himself to the tiers-of-scrutiny approach concocted in courts above him. That approach has few defenders on the constitutional right. Conservatives object that its formlessness licenses pick-and-choose activism, while libertarians object that it inhibits judicial action.

The former prefer a federalism of local solutions on rights; the latter prefer what Richard Reinsch has called “natural rights nationalism.” On Randy Barnett’s account, for example, an explicit purpose of the Fourteenth Amendment was to remove local control over natural rights from the states and transfer it to the national government.

The question, of course, is how to define natural rights. Barnett says a comprehensive, abstract definition is unnecessary. Instead, he argues for shifting from the courts’ current presumption of constitutionality—a posture that defers to self-government by deliberate majority rule by assuming that laws are constitutional unless they are shown to be otherwise—to a presumption of liberty. “A Presumption of Liberty,” he writes, “would place the burden on the government to show why its interference with liberty is both necessary and proper.”[1]

The difficulty here is that all laws limit liberty. This is what laws do. HB2 unquestionably limits the asserted liberty of transgender people to use the facilities they prefer.

The conservative approach would ask whether any explicit constitutional right is at issue. Plainly, none is. Even intermediate scrutiny merely requires the government to show that a law has a substantial relation to an important objective. The presumption of liberty, though, burdens the government with demonstrating that laws are both necessary and proper.  Indeed, laws are only “binding in conscience” if they meet both criteria, and only courts can decide whether they do. This two-pronged test is considerably more difficult to meet than intermediate scrutiny.

To proceed this way would be to transfer to the federal courts—and surely all the way up to the Supreme Court, with a rule for all to result—the task of assessing the necessity and the propriety of a requirement that people use facilities consistent with their physiological sex. Necessity would entail, among other requirements, that the state of North Carolina demonstrate that no other, less restrictive, regulation would have sufficed to achieve its ends.

Recalling that the state would bear the burden of justification, imagine the presentation of evidence here. (Will judges debate the layout of shower areas as opposed to the advisability of entirely separate locker rooms?) A community simply seeking to express its values, another thing laws invariably do, would have little hope against the empiricism of this approach, especially in a post-Lawrence world in which morality is no longer a rational foundation for legislation. (Indeed, Barnett notes, apparently approvingly and certainly without reproach, that Casey and Lawrence alike were rooted in citizens’ “liberty.”)

That is not to say a restriction on facilities like bathrooms or showers could not survive the presumption of liberty. It is merely to raise the question, noting the heightened burden and the difficulties that ensue when these choices are taken out of the community’s hands. Barnett does allow that the presumption of liberty would not protect “wrongful” conduct that infringed the rights of others and that judges—note well: judges—could adjust these boundaries.

Despite his admirable devotion to federalism, Barnett risks placing federal judges in substantially the position of President Obama’s Education Department, anointing them to proclaim a universal solution to a difficult problem on which values differ greatly by locality.

There are, to be sure, competing values at stake. The privacy of transgender and non-transgender people is in tension. These are inherently political choices, best settled by the community. The presumption of liberty conceives of politics essentially as a relation between citizens and the state—the former protecting itself against the latter—but is far less useful, as is the judiciary as an institution, when citizens’ rights conflict with each other. They often do.

Which returns us to Aristotle: Communities can settle this question through law. But most of them, one suspects, are capable of settling it through friendship: the wink and the nod or the look the other way, for example, by which people discreetly use the bathrooms of their choice rather than the policy that forces a formal settling of the issue.

This, again, must happen locally, where friendship has meaning. Local settling of the issue also allows variation between jurisdictions, so that a transgender person who does not find hospitable policies in one locality can choose to live in another.

This is called politics. For Aristotle, law was a part of politics, but not the whole of it. Laws were universal; politics required prudence. And politics fits the complexities of this issue far better than the universality of law, especially when it is further confined in the straitjacket of a nationalism of natural rights.

[1] Randy Barnett, Restoring the Lost Constitution (Princeton University Press, 2014), p. 262.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 20, 2016 at 08:44:15 am

https://blackstoneinitiative.com/2013/07/09/healthcare-our-national-blindspot/.

read full comment
Image of David Linton
David Linton
on September 20, 2016 at 10:36:22 am

"(L)ook the other way, for example, by which people discreetly use the bathrooms of their choice rather than the policy that forces a formal settling of the issue."

It is my opinion, that transgender persons are already using the bathroom of their choice and this entire Bathroom Saga has very little to do with perceived discrimination over bathroom access. Sadly, and all too often, the quest for equality devolves quickly into the quest for dominance - again, in my opinion, this has occurred in the Feminist Movement, and now we are seeing it in the LGBT, et al Movement.

While it wasn't Aristotle's maxim, I think none the less he would likely concur that, "power tends to corrupt and absolute power corrupts absolutely", and it is this truth that rings louder here than the Liberty Bell.

read full comment
Image of Paul Binotto
Paul Binotto
on September 20, 2016 at 11:09:51 am

Problem with Barnett is that his notion that laws be both "necessary AND proper" makes it a virtual certainty that Judges will always be the final arbiter of our relations and that judges will be the ones *navigating* all those "collisions" attendant upon human intercourse.

It makes Law (and judicial law, at that) the controlling element of *politics* in a futile attempt to eliminate *tension* from life and politics.

Can't we all just live with a little tension?

read full comment
Image of gabe
gabe
on September 20, 2016 at 14:00:49 pm

You seriously misunderstand the word liberty to say that “all laws limit liberty.” Liberty, as understood by the founders, was not your freedom to do whatever you wish. Instead, it was your ability to do whatever you wish so long as you respect the equal rights of others life, liberty and property. In fact liberty cannot be taken away constitutionally under the Fifth Amendment without first providing the person due process of law. Prohibiting murder does not “limit liberty” because murder involves the violation of another’s right to life. A law in which the government specifies rules for the use of government owned property (such as a public school) does not limit liberty because the individual does not own the property. However a state law that required everyone to go in the bathroom that corresponded to their physiological sex even on private property or in private schools where the owner of the property did not want that rule, that would constrain liberty and would require further justification.

read full comment
Image of Devin Watkins
Devin Watkins
on September 20, 2016 at 14:07:32 pm

Except we have this whole "necessary and proper" requirement to at least federal action derived from the powers of congress that are not explicit in article I, section 8, clause 18.

read full comment
Image of Devin Watkins
Devin Watkins
on September 20, 2016 at 15:05:54 pm

Devin:

Yep! - am aware of that. Yet, the problem would appear to be that we have switched from a sensible textual *guidance* TO THE LEGISLATURE to make good and proper laws and ones that are derived from their delegated powers to one in which the Judiciary are to be the *sole* determiner of what is proper.

This effectively shifts power to the least representative Branch and will no doubt permit both *activist* and (for Barnett, et al) *engaged* judges to create or negate, as they see fit, new rights AND obligations.
All this while the Judiciary HAPPILY allows (encourages) an even more unrepresentative AND unaccountable governmental instrument, the Fed Admin Agencies to *legislate* to their hearts content in the express ABSENCE of any delegated power to do so.

read full comment
Image of gabe
gabe
on September 20, 2016 at 15:07:01 pm

The most cogent case to consider here is probably the "first impression" case of Gloucester County, which as reached the appellate level. An interesting fact, not given much notice, is that the resolution of the Gloucester County school board call for the provision of private facilities for the use of individuals whose personal preferences (or "needs") for gender "identification" was at variance with their biological and physiological sexual determination. The individual involved complained of the psychological effects of private provisions that differentiated the individual from others whose association was desired.. The issue of whether or not the private provisions met the separate but equal standards of the federal regulations did not seem to matter.

There are, in our society, such things as "Public Offenses" which are not necessarily derived from, or in any way important "governmental" objectives. Consider why intrusions, peepholes, hidden cameras and the like can fall into the category of offenses. It is not usually the case that the public order is disturbed; it is that there is an offense to some (probably most) that the general public regards that as undesirable conduct. Has developed a a their a new girl

Now, if an individual in the exercise of a personal preference in (genuine) "gender identity" were to be charged with a Public Offense for intrusion into a bathing off toilet facility established for the exclusive use of a biologically and physiologically determined sexual class, we might then be dealing with the actual issue of the impact of a social rule on personal conduct and whether there are exemptions necessary.

Problems arise when we attempt to resolve such issues as though they must be derived from "governmental objectives." As has been stated so often, "government" has no objectives; people use the instrumentalities of governments as means to objectives.

The function of the constraints of Title IX is to determine the proper application of federal appropriations. The tests under that Title should properly come upon the denial of participation in the allocations of those federal funds. That Title and its excrescences (letters, rulings, advices) should not be (though they may have become) the basis for the establishment of individual legal rights.

What have we done?

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on September 20, 2016 at 15:31:27 pm

Guidance? You mean the legislature can do whatever they want but the expressly enumerated powers of congress in the constitution are mere "recommendations"? That has never been the understanding of the constitution going all the way back to McCulloch v. Maryland. Judges are not the "sole" determiner of what is proper, they are one of three co-equal branches each of which evaluates if the means are proper.

"new rights AND obligations" have nothing to do with the word proper which deals only with powers not rights.

read full comment
Image of Devin Watkins
Devin Watkins
on September 20, 2016 at 17:06:19 pm

Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end.

Ooo, very nice. And Aristotle thought that up all by himself, did he?

Damn plagiarist. Obviously he cut & pasted this idea from Lau Tzu, who wrote in the Tao Te Ching, 38. On Religion [the Law]:

For when Tao is lost, there is love;

When love is lost, there is kindness;

When kindness is lost, there is justice [duty];

And when justice [duty] is lost, there is religion [the law].

So I’m giving Aristotle no credit on his entire Nicomachean Ethics and I’m reporting him to the Ethics Committee.

read full comment
Image of nobody.really
nobody.really

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.