More goofy shit from Secular Progressives......Transgenders are not a protected class, nothing that North Carolina has done could even remotely be construed as "Unconstitutional"....It just pisses off Secular Progressives, and is another death nail in their Anti-American coffin(s).
On Fri, May 6, 2016 at 11:48 AM, plainolamerican <[email protected]> wrote: > A decision written by Supreme Court Justice Antonin Scalia helps explain > why North Carolina's H.B.2 bathroom bill is illegal. > > First the American Civil Liberties Union > <https://www.aclu.org/sites/default/files/field_document/dkt_1_-_carcano_v._mccrory_complaint.pdf> > and > now the U.S. Justice Department > <https://www.documentcloud.org/documents/2823498-Doj-Letter-Nc.html>have > concluded that North Carolina’s bathroom bill, H.B.2, is illegal and > probably unconstitutional as well. Most people of goodwill may > instinctively feel the same way. > > But why? > > If pushed, most people would say, “It’s discriminatory.” That’s the answer > my Con Law students often give about various hypothetical statutes. They’re > always correct, and always wrong, because all laws are “discriminatory.” > Driver’s-license laws and drinking laws discriminate on the basis of age, > for example. Immigration law discriminates on the basis of birthplace and > citizenship. Tax laws discriminate on residence, income level, home > ownership, and occupation. > LATEST FROM POLITICS > > <http://www.theatlantic.com/politics/archive/2016/05/dont-blame-tv-for-trump/481221/> > > Don’t Blame TV for Trump > <http://www.theatlantic.com/politics/archive/2016/05/dont-blame-tv-for-trump/481221/> > > In order to invalidate a law, a challenger must show that the law engages > in discrimination that is forbidden, either by the Constitution itself or > by a valid statute. That’s the position the Justice Department took > Wednesday in its letters to North Carolina state officials. H.B.2, they > say, violates Title VII, the employment-discrimination section of the Civil > Rights Act of 1964. > > But if so, why is that true? The so-called “bathroom provisions” of the > bill target transgender individuals. The Civil Rights Act doesn’t make any > reference to trans people—it forbids discrimination in employment “because > of … race, color, religion, sex, or national origin.” > > A defender of the bill would argue, first, that it doesn’t discriminate > against anyone—it only requires bathrooms at a state office or school “to > be designated for and only used by persons based on their biological sex,” > which is defined as “the physical condition of being male or female, which > is stated on a person’s birth certificate.” All men, as the state defines > the term, must use the men’s room, and all women, as the state defines the > term, must use the women’s room—the essence of equality. > > Second, the defender would argue, look at the terms above: The statute > does not forbid discrimination against transgender people—or, for that > matter, against lesbians and gays. So even if H.B.2 does discriminate, it’s > not forbidden discrimination. The legislature decided it had a reason for > the discrimination—to keep supposed transgender rapists away from > children—and so everything is fine. > > The answer to the first argument is easy. Government discriminators have > used the language of equality for a century and a half, as in the argument > that Southern segregation was a system of “separate but equal.” But the > Supreme Court has recognized, equality is more than words on a page; it is > a practical concept, relating to the way people live. It can be violated in > a million ways, and (as I remember from my segregated childhood) telling > people what bathrooms they can and can’t use is at least potentially one of > them. > > The second argument remains: Nothing in the statute forbids discriminating > on the basis of “being transgender.” > Men could harass men, they argued, but that wasn’t *sexual* harassment. > > To understand why the bathroom bill violates Title VII, I turn to an > eminent figure in the history of civil-rights law, Justice Antonin Scalia. > In 1991, the Supreme Court decided *Oncale v. Sundowner Offshore > Services, Inc* <https://www.law.cornell.edu/supct/html/96-568.ZO.html>*.—*a > Title VII lawsuit brought by a former roustabout—a married man with > children who happened to be on the small side—on an all-male oil-rig crew > working in the Gulf of Mexico. For reasons that aren’t entirely clear, in > the prison-like isolation of the platform, Joseph Oncale’s workmates > harassed him by repeatedly holding him down and threatening to rape him. On > one occasion, he alleged, they pushed a bar of soap up his anus. He quit > his job and sued the company for tolerating “sexual harassment.” The > company said the statute did not apply. Men could harass men, they argued, > but that wasn’t *sexual* harassment. The Fifth Circuit agreed, holding > that same-sex harassment could never be harassment “because of sex.” > > Oncale took his case to the Supreme Court in December 1997. He cited an > earlier case holding that Title VII was violated not because a plaintiff > was a man or a woman but because “the employer relied upon sex-based > considerations” in making employment decisions. The sexual *nature *of > the threats and assaults, he said, meant that the harassment was “because > of sex.” At oral argument <https://www.oyez.org/cases/1997/96-568>, > however, Scalia was aggressively skeptical of Oncale’s claim. The > plaintiff’s workmates, Scalia suggested, “just didn’t like this guy.” Later > (apparently on the assumption that there must be something about Oncale’s > sexuality that provoked the violence), Scalia said, “I don’t know why > singling him out on the basis of his sexuality means that you’re singling > him out on the basis of his sex.” The company’s lawyer gladly agreed, > arguing that Congress could not have intended the statute to cover “the > entire gam[ut] of sexuality.” Congress had recently refused to pass a > statute against sexual-orientation discrimination; thus, he added, Title > VII could not encompass anything that might suggest a bar on anti-gay > discrimination. > > Yet when the decision was announced in March 1998, the vote was 9-0 for > Oncale—and Scalia himself wrote the Court’s terse, somewhat grudging > opinion. (Justice Clarence Thomas concurred separately.) “[N]othing in > Title VII necessarily bars a claim of discrimination ‘because of … sex’ > merely because the plaintiff and the defendant … are of the same sex,” > Scalia wrote. “[M]ale-on-male sexual harassment in the workplace was > assuredly not the principal evil Congress was concerned with when it > enacted Title VII. But statutory prohibitions often go beyond the principal > evil to cover reasonably comparable evils.” The text said, “because of > sex,” and Oncale had stated a claim. Scalia was probably not happy about > the result; but he insisted that statutory words meant what they said, and > the statute said, “because of sex.” > A just state cannot assign people a status at birth and force them to live > their lives in compliance with its estimation of who they are. > > The “bathroom” provision is *about *sex—“sex-based considerations”—and > nothing else. The North Carolina law enacts a state definition of “physical > sex” and makes the birth-certificate definition of sex binding on an > individual. But trans people are people for whom the birth-certificate > designation has proved to be erroneous. The weight of medical opinion > supports them; to pretend, as the legislators did, that a trans > individual’s gender identity is a subjective whim is at best ignorant—akin > to climate denial—and at worst grossly dishonest. The assumption behind > H.B.2 is that the state, and the state alone, is entitled to assign each of > its residents a sex and require compliance with its will. But the premise > of American law is that people are individuals. A just state cannot assign > them a status—whether of race, caste, disability, or sexual identity—at > birth and force them to live their lives in compliance with its estimation > of who they are. > > Thus the state is refusing trans employees and students access to > facilities for their sex *because of* a state objection to the way in > which that sex was determined. A birth certificate cannot control an > individual’s later gender identity; to claim otherwise would be akin to > refusing to allow persons born out of state to vote in North Carolina, on > the grounds that their birth certificates show that they are residents of > other states. > > The idea that anti-trans discrimination *is* sex discrimination may seem > novel. Even those charged with enforcing Title VII at one time rejected the > idea. In 2013, Chai Feldblum—a former Georgetown Law professor who now > serves on the federal Equal Employment Opportunity Commission—published in > the*Journal of Law in Society* a concise history of this change > <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiZwJevv8PMAhUEVD4KHVWCBdwQFgggMAA&url=http%3A%2F%2Flaw.wayne.edu%2Fjournal-of-law-society%2Fpdf%2Ffeldblum_article.pdf&usg=AFQjCNGYzI9jEcuvn5IMRV44agAVHZhwEA&sig2=6PpJ0J45hdl30m3MEHu8_w>. > In 1974, she notes, the Commission dismissed a complaint by a trans woman. > This was not a case of discrimination “because of sex,” the EEOC reasoned, > but one of discrimination because of “having undergone a particular > operation.” Since that time, lower courts and federal agencies have > rejected that crabbed idea and have fashioned powerful case law > demonstrating that LGBT people who are treated differently than their > coworkers (or fellow students at a federally funded institution) are > suffering discrimination “because of sex.” > > The American understanding of human sexuality has now begun to embrace the > full humanity of transgender people. That understanding will deepen as the > law disarms the official hatred that seeks to drive them underground. It > won’t take 40 years for society to see that the rationale of H.B.2 and > other bathroom laws as farcical. All that’s needed are courts that take > statutes seriously. > > -- > -- > Thanks for being part of "PoliticalForum" at Google Groups. > For options & help see http://groups.google.com/group/PoliticalForum > > * Visit our other community at http://www.PoliticalForum.com/ > * It's active and moderated. Register and vote in our polls. > * Read the latest breaking news, and more. > > --- > You received this message because you are subscribed to the Google Groups > "PoliticalForum" group. > To unsubscribe from this group and stop receiving emails from it, send an > email to [email protected]. > For more options, visit https://groups.google.com/d/optout. > -- -- Thanks for being part of "PoliticalForum" at Google Groups. 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