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Why Arizona's Bathroom Bill Is Unconstitutional

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Last night the Arizona House Appropriations Committee passed a new version of the notorious "Bathroom Bill." SB1045 makes it against state law for local governments to pass laws or regulations which ensure access to public access to "privacy areas" based on "gender identity or expression." It nullifies existing laws that do, and states that business owners can't be held accountable if they deny access to an individual if the individual's gender expression doesn't meet the business owner's approval.

Almost as appalling was the designation of this bill as an emergency measure. The last time I checked, Governor Brewer never had to call out the National Guard to put down mobs of rampaging transsexuals in bathrooms.

Adding to the ludicrous nature of the bill is the fact that it creates a very soft definition of who can be discriminated against:

(a) An individual's self identification as male, female or something in between and includes an individual's appearance, mannerisms or other characteristics only insofar as they relate to gender with or without regard to the individual's designated sex at birth.

This means that the bill makes it perfectly legal to tell non-transgender women and men they can't use the bathroom if they do not meet some arbitrary standard for femininity or masculinity. Butch lesbian? Take a hike. Have polycystic ovarian syndrome or acromegaly? No loo for you. Teen boy who wears his hair long? Go use the women's and hope your friends don't ever find out you were forced to. Wearing sweat pants and a hoodie instead of a house dress? Beat it before I call the cops.

It isn't hard to see how this bill has potential for extreme abuse.

Of course, most sane people would ask how this could be constitutional. They would be right. It probably isn't.

Just as Phoenix recently passed a measure protecting transgender people recently, in the early 1990's the cities of Aspen and Boulder enacted ordinances that banned discrimination (including public accommodations) on the basis of sexual orientation. Voters in the state of Colorado passed Amendment 2 to the state constitution in response. Amendment 2 repealed these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." It also prohibited all legislative, executive or judicial action at any level of state or local government designed to protect the LGB people.

This became the basis for the landmark legal case Evans v. Romer. The Supreme Court struck down Amendment 2, reasoning:

[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Amendment 2 fails, indeed defies, even this conventional inquiry... First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group. A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected... Amendment 2 violates the Equal Protection Clause...

It is easy to see how a clear analogy between Amendment 2 and SB1045 can be made. Given the lack of incidents where gender non-conforming people have caused harm in public spaces and the evident animus of the bill in attempting to single out a group, SB1045 seems to fail both constitutional tests miserably.

The landmark case of Glenn v. Brumby in the 11th circuit has also established that the Equal Protection Clause applies to transgender people. Additionally, many other cases have established that as a class, transgender people are subject to "intermediate scrutiny." Intermediate scrutiny is just a fancy legal way of saying that if something affects transgender people as a group, it has to serve an important state interest. Given Tucson had public accommodations protections for well over a decade without incident, such a reason is very hard to discern.

Another pertinent case is Hopkins v. Price Waterhouse. Ann Hopkins was denied promotion repeatedly because she did not act enough like a stereotypical woman, even though metrics measuring her performance showed her to be one of the best earners. The Supreme Court ruled against Price Waterhouse because it reasoned you cannot discriminate against people because they do not meet a stereotype for gender. While this ruling applies to interpreting Title VII (employment law) of the 1964 Civil Rights Act, and not specifically to Title II (public accommodations), imagine the a case where a non-transgender woman is denied bathroom entry because she has a medical condition, wears her hair short, or doesn't wear feminine enough clothing.

Title II doesn't include "sex" as a protected class with regards to public accommodations. Any government action based on sex, however, must pass the test of intermediate scrutiny. Keeping women who dress differently, wear their hair differently, have a medical condition, who are too tall, have too narrow hips, or too broad of shoulders out of bathrooms clearly does not meet the requirement of serving an "important state interest." SB1045 violates the intent of Hopkins v. Price Waterhouse: you are holding people to a gender stereotype, there will be injury, and it doesn't meet the intermediate scrutiny test.

You wouldn't think people with law degrees would pass legislation that is so blatantly unconstitutional.

Yet, here we are.

The LGB community is rightly looking forward to victories in the Supreme Court this summer. For transgender people, as well as anyone who is gender non-conforming in any way for any reason, we are facing legislative Armageddon. This bathroom bill is a trial balloon. If it is not vigorously and immediately challenged legally, conservative states all over the country will follow suit with bills that are potentially even more regressive. Hopefully, progressive legal organizations have the will to rally us as strongly as they did the LGB community with Proposition 8 and DOMA.

And maybe, just maybe, the transgender community will have a Romer v. Evans to call their own.