To protect women and minors, North Carolina passed House Bill 805, which took effect on January 1, 2026.[1] North Carolina’s House Bill 805 lays out a statutory definition of biological sex and codifies that “gender identity” is not “legally or biologically equivalent” to biological sex.[2] The statute limits the definition of biological sex to “sex chromosomes . . . sex hormones, gonads, and nonambiguous internal and external genitalia present at birth.”[3] It further defines “gender identity” as “an individual’s self-declared identity . . . not to be treated as legally or biologically equivalent to sex.”[4]
An obvious immediate implication of such a law is the application of an enhancement for “assault on a female.”[5] The relevant statute provides for a Class A1 misdemeanor if “in the course of the assault, assault and battery, or affray, he . . . [a]ssaults a female, he being a male person at least 18 years of age.”[6] Because transgender women are legally defined as men by North Carolina law, an eighteen-year-old male who commits battery against a transgender woman is not subject to the Class A1 misdemeanor enhancement. Such a distinction cuts to the heart of the Equal Protection Clause.
In M.E. v. T.J., the North Carolina Court of Appeals applied the Supreme Court of the United States ruling in Bostock, stating:
Supreme Court opinion of Bostock includes a thorough analysis resulting in the conclusion that discrimination based upon a person’s “homosexuality” or “transgender status” is always also discrimination based on “sex,” or gender. Therefore, applying Bostock, we conclude that equal protection challenges of a law based upon LGBTQ+ status are also challenges based upon “sex” or gender and, therefore, require at least “intermediate scrutiny.”[7]
Thus, the North Carolina Court of Appeals has already determined, based on Supreme Court precedent, that discrimination against transgender persons is discrimination based on “sex.”[8] As a result, the new North Carolina law redefining sex as strictly biological, determined at birth, sets up a novel issue under the law on an Equal Protection challenge. In that same case, the Court of Appeals reaffirmed the principle that “[The Court of Appeals] cannot construe the provisions of the North Carolina Constitution to accord the citizens of North Carolina any lesser rights than those which they are guaranteed by parallel federal provisions in the federal Constitution.”[9]
In light of these previous rulings, the question of whether House Bill 805 will survive the courts hinges on the Supreme Court’s ruling in Bostock, which leads to the larger question of whether Bostock will continue to remain “good law.” In his article, Doron Kalir states that the Bostock opinion is “so solidly built and so well-defended is that structure that neither an institutional conservative nor a liberal icon saw reason to add a single brick to it.”[10] He argues that Bostock is nearly mathematical, framing the decision as a syllogism: “Thus, ‘if the employer intentionally relies in part [(ß)] on an individual employee’s sex [(α)] when deciding to discharge the employee’ (γ), then Title VII is violated (V)” where “α [is] ‘sex’—which is defined for the purposes of this Model as the ‘biological distinctions between male and female.’”[11] Thus, the syllogism in its mathematical accuracy relies on the premise that transgender expression falls within the definition of “sex.” In North Carolina, the syllogism now fails because transgenderism expressly falls outside the definition of “sex.”
Bostock was later cabined to the Title VII issue in United States v. Skremetti.[12] In Skremetti, the Court “consider[ed] whether a Tennessee law banning certain medical care for transgender minors violates the Equal Protection Clause of the Fourteenth Amendment.”[13] The Supreme Court “decline[d] to address whether Bostock’s reasoning reaches beyond the Title VII context—unlike the employment discrimination at issue in Bostock, changing a minor’s sex or transgender status does not alter the application of [the Tennessee Law].”[14]
With House Bill 805, North Carolina has set up another Equal Protection issue for the Supreme Court. Obviously, for any case or controversy to reach the Supreme Court, a plaintiff must have standing, which requires a showing of injury in fact, causation, and redressability.[15] Consequently, for the law to become a legal question before the court, a transgender North Carolinian will have to suffer some concrete harm that leads to disparate treatment under the law due to House Bill 805. The most likely hypothetical situations to arise to such a level involve loss of access to public facilities (e.g., restrooms), denial of preferred gender designation on driver’s licenses, and juvenile participation in school athletics.
House Bill 805 places North Carolina on a direct collision course with established Equal‑Protection doctrine by redefining “sex” in a manner that conflicts with both Bostock’s reasoning and the North Carolina Court of Appeals’ own interpretation of federal constitutional guarantees. Whether the statute survives judicial review will ultimately depend on how the Supreme Court chooses to reconcile or retreat from the logical structure it adopted in Bostock. Until then, the law’s constitutionality will turn on the first transgender North Carolinian who suffers a concrete injury under its provisions and brings the issue squarely before the courts.
[1] Act of July 9, 2025, 2025 N.C. Laws 84 (2025) (“An act to officially recognize two sexes in North Carolina, to prevent the sexual exploitation of women and minors, to limit the use of state funding, to modify the law related to birth certificates, to modify the law related to civil remedies for gender transition procedures on non-minors, to allow students with religious objections to be excused from certain classroom discussions or activities and to allow parent access to library books and to provide for restrictions on school sleeping quarters.”).
[2] N.C. Gen. Stat. § 12-3.3 (2026).
[3] Id. (emphasis added).
[4] Id.
[5] N.C. Gen. Stat. § 14-33(c)(2).
[6] Id.
[7] M.E. v. T.J., 854 S.E.2d 74, 91 (2020) (internal citation omitted).
[8] See id.
[9]Id. at 92 (quoting Libertarian Party of N. Carolina v. State, 688 S.E.2d 700, 707 (2009)).
[10] Doron M. Kalir, The Inner Logic of Bostock, 11 Wake Forest L. Rev. Online 42 (2021), https://www.wakeforestlawreview.com/2021/03/the-inner-logic-of-bostock/.
[11] Id. (citing Bostock v. Clayton County, 590 U.S. 644 at 655, 658 (2020)).
[12] 605 U.S. 495 (2025).
[13] Id. at 500.
[14] Id. at 498.
[15] Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–563 (1992).
