Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.
The case, Carcaño v. McCrory, presents an Equal Protection challenge to HB2, the North Carolina law requiring, inter alia, people to use the intimate facilities that correspond with their physiological sexes. Judge Thomas D. Schroeder enjoined the law on statutory grounds, constrained as he was by the preposterous conclusion of the U.S. Fourth Circuit Court of Appeals, since stayed, that the Education Department rightly applied Title IX of the Education Amendments of 1972 to gender identity in addition to biological sex.
Significantly, though, Schroeder said it was unlikely that a challenge to the law would prevail on Equal Protection grounds. He arrived at that conclusion by subjecting HB2 to intermediate scrutiny, a standard falling murkily between the looseness of the rational-basis test and the narrow-tailoring requirements of strict scrutiny.
Intermediate scrutiny requires that a law being challenged in court serve “important governmental objectives” to which it is “substantially related.” HB2 plainly does. The important governmental objectives: the privacy of the 99.7 percent of people who Schroeder notes are not transgender; and the safety of everyone, including transgender people, who might be at risk if predators self-designated their genders in order to gain access to bathrooms, locker rooms, or showers.
As a district judge, Schroeder had no choice but to limit himself to the tiers-of-scrutiny approach concocted in courts above him. That approach has few defenders on the constitutional right. Conservatives object that its formlessness licenses pick-and-choose activism, while libertarians object that it inhibits judicial action.
The former prefer a federalism of local solutions on rights; the latter prefer what Richard Reinsch has called “natural rights nationalism.” On Randy Barnett’s account, for example, an explicit purpose of the Fourteenth Amendment was to remove local control over natural rights from the states and transfer it to the national government.
The question, of course, is how to define natural rights. Barnett says a comprehensive, abstract definition is unnecessary. Instead, he argues for shifting from the courts’ current presumption of constitutionality—a posture that defers to self-government by deliberate majority rule by assuming that laws are constitutional unless they are shown to be otherwise—to a presumption of liberty. “A Presumption of Liberty,” he writes, “would place the burden on the government to show why its interference with liberty is both necessary and proper.”[1]
The difficulty here is that all laws limit liberty. This is what laws do. HB2 unquestionably limits the asserted liberty of transgender people to use the facilities they prefer.
The conservative approach would ask whether any explicit constitutional right is at issue. Plainly, none is. Even intermediate scrutiny merely requires the government to show that a law has a substantial relation to an important objective. The presumption of liberty, though, burdens the government with demonstrating that laws are both necessary and proper. Indeed, laws are only “binding in conscience” if they meet both criteria, and only courts can decide whether they do. This two-pronged test is considerably more difficult to meet than intermediate scrutiny.
To proceed this way would be to transfer to the federal courts—and surely all the way up to the Supreme Court, with a rule for all to result—the task of assessing the necessity and the propriety of a requirement that people use facilities consistent with their physiological sex. Necessity would entail, among other requirements, that the state of North Carolina demonstrate that no other, less restrictive, regulation would have sufficed to achieve its ends.
Recalling that the state would bear the burden of justification, imagine the presentation of evidence here. (Will judges debate the layout of shower areas as opposed to the advisability of entirely separate locker rooms?) A community simply seeking to express its values, another thing laws invariably do, would have little hope against the empiricism of this approach, especially in a post-Lawrence world in which morality is no longer a rational foundation for legislation. (Indeed, Barnett notes, apparently approvingly and certainly without reproach, that Casey and Lawrence alike were rooted in citizens’ “liberty.”)
That is not to say a restriction on facilities like bathrooms or showers could not survive the presumption of liberty. It is merely to raise the question, noting the heightened burden and the difficulties that ensue when these choices are taken out of the community’s hands. Barnett does allow that the presumption of liberty would not protect “wrongful” conduct that infringed the rights of others and that judges—note well: judges—could adjust these boundaries.
Despite his admirable devotion to federalism, Barnett risks placing federal judges in substantially the position of President Obama’s Education Department, anointing them to proclaim a universal solution to a difficult problem on which values differ greatly by locality.
There are, to be sure, competing values at stake. The privacy of transgender and non-transgender people is in tension. These are inherently political choices, best settled by the community. The presumption of liberty conceives of politics essentially as a relation between citizens and the state—the former protecting itself against the latter—but is far less useful, as is the judiciary as an institution, when citizens’ rights conflict with each other. They often do.
Which returns us to Aristotle: Communities can settle this question through law. But most of them, one suspects, are capable of settling it through friendship: the wink and the nod or the look the other way, for example, by which people discreetly use the bathrooms of their choice rather than the policy that forces a formal settling of the issue.
This, again, must happen locally, where friendship has meaning. Local settling of the issue also allows variation between jurisdictions, so that a transgender person who does not find hospitable policies in one locality can choose to live in another.
This is called politics. For Aristotle, law was a part of politics, but not the whole of it. Laws were universal; politics required prudence. And politics fits the complexities of this issue far better than the universality of law, especially when it is further confined in the straitjacket of a nationalism of natural rights.
[1] Randy Barnett, Restoring the Lost Constitution (Princeton University Press, 2014), p. 262.
