Why Is The DoJ Pushing A Radical, False, Indefensible Theory of Sex?
Even extremist feminists rarely try to argue that sex is a so-called "social construct," nor that it's constituted (in whole or in part) by "gender identity" (a term so protean that it's virtually useless trying to pin anyone down on it). Normally the tactic is to insist on some vague appeal to the sex/gender distinction. The DoJ's line up to this point has been that "gender identity" trumps sex (i.e. maleness/femaleness) with respect to the relevant issues. The DoJ, however, is now taking the much more radical line that "gender identity" is partially constitutive of sex. (This is part of what the term 'gender' does for the PC left in these contexts: it facilitates equivocation. If you need to blur the sex/gender distinction, you use 'gender' to mean sex. If you need them to be different, you indignantly declare that sex and gender are utterly different, and never the twain shall meet. )
My guess: the statutes they're citing as the legal foundation of their case are all about sex discrimination--e.g. Title VII of the Civil Rights Act of 1964:
As set forth below, Defendants’ compliance with and implementation of Part I of North Carolina Session Law 2016-3, House Bill 2 (“H.B. 2”), which was enacted and became effective on March 23, 2016, constitutes a pattern or practice of employment discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964
However, as I've noted before, North Carolina in no way seems to be discriminating against anyone with respect to sex. As long as sex-segregation of public restrooms is permissible, then the NC law is fine--it merely says: you've got to use the restroom associated with your sex...just like everyone else. The relevant people at DoJ probably realize that they can't win by arguing, as they have been, that the law must make an exception for "gender identity." "Gender identity," after all, isn't even an actual concept. It's not flat-out incoherent...but it's an ad hoc, highly theory-dependent concept made up in the activist sectors of academia specifically for the purpose of facilitating equivocation to win arguments like the one in question. I'd be pretty surprised if the terminology "gender identity" were used in any federal legislation.
So, with no statute to point to, what are activists at the DoJ to do? The answer is: drop the line that NC is committing "gender identity" discrimination, argue that it's committing sex discrimination, and argue that "gender identity" is part of sex.
This is an argument so hopelessly and transparently unsound that it boggles the mind. It makes no sense, and it doesn't come close to making sense. And it's chilling to me to watch this all unfold. DoJ either doesn't at all understand what it's arguing, or it understands and it's willfully using radically defective reasoning to push a preordained conclusion. Or, as is common in such cases, it's the time-tested combination of a little from column A and a little from column B. That combination would allow them plausible deniability against cognitive dissonance.
DoJ is simply wrong about this. Perhaps there are good arguments for their position, but these are not them.