Margaret Spellings, president of the University of North Carolina, is not a friend of the LGBTQ community. Installed by the hyper-partisan UNC Board of Governors through a de facto coup, Spellings served as secretary of education under President George W. Bush, an office she infamously used to suppress depictions of same-sex couples on children’s shows. When appointed UNC president, Spellings maintained her anti-gay stance, dismissively describing homosexuality as a “lifestyle.”
So it was no surprise when announced that UNC will comply with North Carolina’s vicious new anti-LGBTQ law, HB 2. Although the law doesn’t nullify UNC’s LGBT nondiscrimination policy, it does explicitly bar trans students from using the bathroom that aligns with their gender identity. In response, Spellings issued guidelines to put UNC in compliance with the statute, declaring that “University institutions must require every multiple-occupancy bathroom and changing facility to be designated for and used only by persons based on their biological sex.”
This rule effectively excludes most trans UNC students from using the correct bathroom. HB 2 defines sex as “stated on a person’s birth certificate.” But in North Carolina, you cannot change the sex on your birth certificate unless you receive gender reassignment surgery, a procedure which many trans people forego for medical, ideological, or financial concerns. Other states, like Tennessee, explicitly bar trans people from changing their birth certificate sex—even if they receive gender reassignment surgery. So a trans UNC student born in Tennessee, for example, is now banned from public bathrooms for life.
If HB 2 were the last legal word on trans bathroom use at UNC, Spellings’ guidelines would be understandable. But far from being the clear governing law, HB 2 is in direct violation of two federal laws. As interpreted by the Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964 forbids employers from discriminating on the basis of gender identity. (EEOC Commissioner Chai Feldblum has already stated that her agency “will investigate claims by NC employees denied access to appropriate restrooms.”) And as interpreted by the Department of Education, Title IX of the Education Amendments of 1972 prohibits schools that receive federal funding from discriminating against trans students. Both of these laws view trans-exclusionary bathroom policies as illegal discrimination.
Spellings, then, had to choose between two conflicting sets of laws, state and federal. One mandated discrimination; the other banned it. Unsurprisingly, Spellings chose the former. If any UNC students were still uncertain about Spellings’ views on diversity and inclusion, her actions related to HB 2 should be clarifying. The UNC president remains loyal to the legislature that pushed her into office. Trans students are merely collateral damage.
Update, April 8, 2016: This post has been updated with a comment from EEOC Commissioner Chai Feldblum.