Congress passed the following law:
Any person or legal entity that provides rest room availability to the public or the employees of that person or entity must designate and insure that:
- There are facilities separate for men and women; and
- Each gender uses only the facility designated for that gender.
Gender shall be defined as based upon the physical sexual attributes the person had at birth, except if a person has completed sex reassignment and legally changed his or her sex.
Failure to abide by these provisions and take appropriate action to enforce the same shall be a misdemeanor.
Bobbi works for John Smith. Bobbi was born male. Bobbi identifies as a female. Bobbi is currently being counseled by a therapist about undergoing sex reassignment surgery. Bobbi wants to use the women’s bathroom at work. John is sympathetic to Bobbi’s situation and would allow Bobbi to use the women’s bathroom but says he cannot because of the law set forth above.
Bobbi is suing to have the law declared unconstitutional. Bobbi maintains that the government lacks the power to enact such a law. The government bases its power to enact the law upon the Commerce Clause.
Bobbi also challenges the law as being a violation of Equal Protection under the 5th and 14th Amendments.
Discuss the pros and cons of Bobbi’s case.