95 N.C. L. REV. 1661 (2017)
As Justice Brandeis famously explained, under our federal system, states are laboratories for testing “novel social and economic experiments.” These laboratories, however, must operate within constitutional limits. Under the Constitution, certain individual rights are sacrosanct and valid federal laws reign supreme. Accordingly, when a state implements a previously untested social policy—such as prohibiting local governments from adopting ordinances that would dictate restroom policies for private businesses and expressly limiting access to public restrooms based on biological sex—the question arises whether the experiment has gone too far.
When North Carolina enacted legislation that set off a national debate over bathroom access, individuals, various media outlets, and the United States Departments of Justice and Education emphatically stated that the answer is “yes.” Members of the LGBT community charged North Carolina with violating their rights to equal protection. And in a May 2016 Dear Colleague letter, the Departments announced a national policy regarding restrooms, informing states that they must allow students in public schools to use bathrooms consistent with the students’ expressed gender identities or risk losing all Title IX funding. Not surprisingly, given the importance of the issue, as well as the threatened loss of billions of dollars in federal funding, the Departments and numerous states filed competing lawsuits pitting the federal government against twenty-four states in multiple federal lawsuits. To date, federal courts have resolved the complex and novel claims with respect to public bathroom access in inconsistent ways, with the Fourth Circuit deferring to the Departments’ interpretation of Title IX’s requirements and a Texas district court issuing a nationwide injunction precluding enforcement of that interpretation.