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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 sex discrimination may seem novel.
The sexual of the threats and assaults, he said, meant that the harassment was “because of sex.” At oral argument, however, Scalia was aggressively skeptical of Oncale’s claim.Men could harass men, they argued, but that wasn’t 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.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.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. B.2, they say, violates Title VII, the employment-discrimination section of the Civil Rights Act of 1964. The so-called “bathroom provisions” of the bill target transgender individuals.Blood, semen, and vaginal fluids, whether fresh or dried, are highly contagious during this period and for several weeks after the start of symptoms.If you have a short-term (acute) infection, in most cases you can't spread the virus after your body starts making a certain type of hepatitis B antibody. If you have a long-term (chronic) infection, you are able to spread the virus as long as you have an active infection.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.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.