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Supreme Court of the United States

The DOJ Is Concerned with Your Civil Bathroom Rights… If You Identify As the Opposite Sex

October 17, 2017

By: James Gottry


In what can only be described as a dazzling display of duplicity, the Department of (In)Justice has proclaimed that North Carolina’s “bathroom bill,” HB2, violates federal civil rights laws. According to the DOJ, HB2 limits protections to LGBT people. The DOJ believes people must be permitted to use the bathroom that matches their subjective gender identity.


Let's see how this principle works out for "Jack." Jack is a male but his subjective gender identity is female. The DOJ says Jack should therefore be empowered to use a bathroom or locker room with women. Giving Jack this option, the story goes, would spare Jack from the discomfort of sharing a bathroom with (other) biological males. This (apparently) works out pretty well for Jack.

However, "Jill" doesn't fare so well. Jill is a female and her subjective (and actual) gender identity is female. Accordingly, Jill should be empowered to use a bathroom with women. Giving Jill this option would spare her from the discomfort, embarrassment and lack of privacy that would result if she was forced to share a bathroom with men. Unfortunately, Jill no longer has this option because her bathroom now contains Jack, a biological male.

Aside from the incongruence of the DOJ’s conclusion, this is just the latest example of a growing willingness on the part of government officials to compromise the privacy and safety of all citizens in order to satisfy the demands of powerful special interests. And rest assured, HB2 and laws like it are not attacks on anyone’s civil rights. These laws are motivated by women’s legitimate concerns and are a response to policies that violate the privacy of women and girls and introduce uncertainty into intimate settings where women and girls deserve to feel safest.

Let’s take the story of Jack and Jill a step further. Imagine Jack doesn’t subjectively identify as a female. Instead, Jack recognizes that policies like those promoted by the DOJ provide an opportunity for him to enter a woman’s restroom or locker room. (After all, Jack wouldn’t be the first to do so, or the second, or the third.) Under HB2, Jack’s attempt to enter a woman’s restroom, absent him taking considerable pains to modify his appearance, will draw attention and possibly intervention. This will reduce crimes of opportunity—that is to say, it will make it more difficult—for those who would seek to prey on women and children. However, under a policy that enables any individual to use any restroom, simply by claiming a particular gender identity, it makes it easier for predators to access intimate settings, and citizens will be dissuaded from voicing any concern or acting to ensure the safety and privacy of the vulnerable.

Let’s also imagine that Jill is one of the one out of every four girls who, according to some studies, was sexually abused during childhood. Let’s imagine that for years after she “slept with the light on and showered in her underwear.” Now let’s acknowledge that forcing Jill, and the thousands of women and girls like her, to encounter individuals of the opposite sex in intimate settings like bathrooms and locker rooms can trigger emotional and psychological trauma. The Obama administration has spoken of its dedication to fighting the growing epidemic of sexual assault, so why is the administration supporting policies that will increase the risk of re-traumatizing those who have already suffered such abuse?

“There’s no way to make everyone happy in the situation of transgender locker room use. So the priority ought to be finding a way to keep everyone safe.” 


~ Kaeley Triller, sexual assault survivor


Basing bathroom and locker room use on subjective gender identity will functionally eliminate sex-specific bathrooms, which in turn will compromise privacy and safety for all. And make no mistake, what happens in North Carolina will not stay there; this is “no longer just a North Carolina issue,” as Governor Pat McCrory stated in a Sunday interview with Fox News. If the federal government is allowed to pull funding from any state that does not comply with the DOJ’s inaccurate and arbitrary interpretation of federal law, then it will swiftly compel the capitulation of every state.


On Monday, McCrory’s administration filed a lawsuit against the federal government. The lawsuit refers to the DOJ’s position as a “baseless and blatant overreach,” and “an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts.” The DOJ responded with their own lawsuit against North Carolina, seeking a preliminary injunction to block HB2, and claiming that state entities are violating Title VII of the Civil Rights Act, Title IX the Education Acts Amendment of 1972 and the Violence Against Women Reauthorization Act.

It’s unclear how the North Carolina legislature and public university system will respond to this attack on common sense by the Obama administration’s DOJ, but this much is clear: the current administration is waging a war against privacy and safety protections for all citizens, and women and children will suffer the most for it.

If we allow Jack to travel down this path, it is certain that Jill will come tumbling after. 

To learn more about this issue, visit

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