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It truly beggars belief that members of the House of Representatives truly seem to have nothing better to do than clutch their pearls about who is using the washrooms in the Capitol and other realms of the House.

Apparently, Rep Nancy Mace (SC-1st) apparently can’t wait for the arrival of Rep-elect Sarah McBride (DE-At Large) in the new Congress to be sworn into office in January nor does it appear she can be bothered to have a discussion on this sensitive issue in private as adults have been known to do from time to time.

Rep-elect Sarah McBride is the first openly transgender woman elected to Congress.

I had honestly thought we had learnt something from the negative experiences such as North Carolina’s breathtakingly stupid HB2 “bathroom ban” legislation that caused significant damage to our economy due in no small part to boycotts and travel restrictions.

Apparently not.

Then there is the palpable irony of Rep Mace being the first female to graduate from The Citadel’s Corps of Cadets where she presumably used the washrooms and locker facilities from time to time in that previously male-only programme that only admitted women after a court order allowing Shannon Faulkner to join in 1995.

You’d think that someone who had the distinction of surviving one of the toughest residential military college programmes in the country and likely endured more than a little abuse from male cadets along the way might be a bit more sensitive to gratuitously abusing, misgendering, and creating a hostile work environment for her soon-to-be colleague.

Yeah, not really seeing that in her character.

So here is H.Res. 1579 in all it’s “glory”:

Rep Mace has since filed a bill HR 10186 that would expand those restrictions upon any Federal property.

And lo and behold, the distinguished gentlelady from Georgia’s 14th district has signed onto both forms of the discrimination they hope to enshrine in law.

Quelle surprise that Marjorie Taylor Greene would sign on as a co-sponsor and I’m sure it won’t be long before she is joined the other ultra-MAGAs who brought down Speaker McCarthy and to whom Speaker Johnson is utterly beholden as witnessed by this presser that came from the Speaker’s office a short time ago.

That would seem to be a rather dramatic U-turn from the story he was telling just the day before:

“This is an unprecedented matter, so we’re going to, we’ll find a resolution that that solves the problem, but we’re working on that … and stay tuned for how we respond.”

“We welcome all new members with open arms who are duly elected representatives of the people. I believe it’s a command we treat all persons with dignity and respect. … This is an issue that Congress has never had to address before. We’re going to do that in a deliberate fashion with member consensus on it, and we will accommodate the needs of every single person.”

Speaker Johnson seems to think this proposed policy is actually enforceable which I’m sure is going to absolutely thrill the House Sergeant-at-Arms who would likely have the responsibility for policing the washrooms if not break up any physical altercations “defending women’s bathrooms” that MTG seemed to be implying in her press gaggle.

Rep-elect McBride for her part has chosen to take the high road none of her impending colleagues could bother to walk and has issued a statement of her own that she will abide by the restrictions imposed by Speaker Johnson (and yes, I do think it’s rather dark humour that someone with the Speaker’s surname would weigh in on this issue!) that Rep Mace has admitted is explicitly targeting her.

But that rather begs the question…is such a discriminatory ban actually legal?

We’ve all known that Congress isn’t exactly known for Congress itself following the laws that they impose upon the American people. There have been plenty of instances of behaviour on the part of members of Congress that would get the average American citizen a date in the prisoner’s dock answering to charges.

This policy would be seem to be a clear cut violation of Ms McBride’s civil rights under Title VII of the Civil Rights Act of 1964 (as amended) which prohibits discrimination based on sex (specifically including “sexual orientation or gender identity”). Any employer who tried to enforce such a policy could find themselves the subject of an enquiry by the Equal Employment Opportunities Commission (EEOC) or litigation for creating a hostile work environment for harassment based on gender identity.

But is Congress itself subject to the Civil Rights Act?

The Congressional Accountability Act of 1995 would seem to suggest it is and Title VII is specifically called out by the House Ethics Committee as the first act of Congress (of a series of employment and discrimination-based acts) that was extended to apply to Congress.

Then there are these provisions in the current version of the Rules of the House of Representatives in Rule XXIII (Code of Official Conduct) that would seem to be directly on point:

• Rule XXIII (1) – A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect credibly on the House.
• Rule XXIII (9) – A Member, Delegate, Resident Commissioner, officer, or employee of the House may not discharge and may not refuse to hire an individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the race, color, religion, sex (including marital or parental status), sexual orientation, gender identity, disability, age, or national origin of such individual, including by committing an act of sexual harassment against such individual, but may take into consideration the domicile or political affiliation of such individual.
• Rule XXIII (18)(b) – A Member, Delegate, Resident Commissioner, officer, or employee of the House may not engage in unwelcome sexual advances or conduct towards another Member, Delegate, Resident Commissioner, officer, or employee of the House.

Surely violations of XXIII (9) sex-based discrimination and the hostile work environment envisioned in violations of XXIII (18)(b) would lead to a finding that the member had also violated XXIII (1).

And certainly Members coming to blows with other Members would also be a prima facie violation of XXIII(1).

That Reps Mace and Greene can openly bully and harass an incoming Representative without suffering any consequences or having any accountability for their words and actions speaks to the well-known weakness of Speaker Johnson and to how difficult it would be to remove them from their “safe” seats and how little they have to care about the issues that matter most to their constituents.

For now, Rep-elect McBride has decided this silly battle over bathrooms isn’t worth her time fighting and that she’d much rather spend her time working to solve the problems her constituents face in their every day lives. Her grace in the face of intolerance and hatred is certainly remarkable and probably better than most of us are capable of mustering.

Were she to find herself tiring of this ban, I’m sure she’d have a strong chance of prevailing with the “Office of Congressional Workplace Rights” if not referring those who would abuse her rights to the House Ethics Committee for censure.