Scalia Bolsters Obama’s Legal Case Against Transgender Discrimination

The legal reasoning behind the Obama Administration’s push to assert transgender rights under equal rights laws is likely to win favor in federal courts, the Los Angeles Times states in its analysis. After North Carolina passed its so-called bathroom bill, which claims public bathrooms and changing facilities may be used only “by individuals based on their biological sex [as] stated on a person’s birth certificate,” the Justice Department shot back with a lawsuit claiming the ban was an unconstitutional violation of civil rights. Last week the Obama Administration sent a letter to public schools nationwide, saying they must treat students consistent with their gender identity or risk losing federal funding, and the Heath and Human Services Department announced regulations forbidding sex discrimination in healthcare and health coverage, covering “pregnancy, gender identity and sex stereotyping.” The issues involve a legal question that, while simple, has not been explicitly addressed by Congress or the Supreme Court: what is discrimination based on “sex”? The administration’s legal reasoning may be bolstered by an unlikely ally—the late Supreme Court Justice Antonin Scalia. In a case where one man claimed sexual harassment by a group of other men, Scalia wrote that the 1964 Civil Rights Act’s statutory prohibitions “often go beyond the principal evil to cover reasonably comparable evils,” and that the words of the law can be read to forbid “sexual harassment of any kind.”