95 N.C. L. REV. 1161 (2017)
This Article explores striking parallels between the current battle to secure equality for transgender people and the prior battle to win marriage equality for same-sex couples. In both instances, the success of the marriage and transgender equality movements came only after years of judicial losses and depended heavily on two profound changes: increasing judicial and legislative acceptance of gender equality; as well as increasing social acceptance of lesbian, gay, bisexual, and, more recently, transgender people. As a result of those changes, defenders of state marriage bans were unable to rely on gender stereotypes or arguments about the pathology or immorality of gay people, since those arguments lacked credibility in most courts. Instead, they turned to biology, seeking to justify the restriction of marriage to different-sex couples as merely a neutral, nondiscriminatory reflection of the biological differences involved in procreation. While those arguments enjoyed some initial success, most courts—including the U.S. Supreme Court—ultimately rejected them as circular, concluding that the marriage bans were discriminatory and not simply the reflection of “natural” facts.
Today, opponents of transgender equality are reviving that failed strategy. Rather than seeking to justify differential treatment of transgender people, they are once again invoking biology to argue that laws excluding transgender persons from shared restrooms merely reflect neutral biological differences between men and women, not a deliberate intention to discriminate. This Article predicts that just as biology-based arguments failed to shield marriage bans from meaningful judicial review in the past, the courts will again recognize that these renewed appeals to biology are circular and do not supply a principled basis for excluding transgender persons from full and equal participation in the public sphere—including access to the same restrooms used by others.