Here’s a funny thing about House Bill 2, the “bathroom bill” (now law) that’s causing North Carolina so much grief: The Charlotte ordinance that the General Assembly was in such a rush to block — the one that supposedly threw the usual custom of sex-separated public bathrooms to the winds — doesn’t directly mention bathrooms at all.
Oh, it’s true that backers of the ordinance understood it would affect permissible restroom choices by transgendered persons, allowing them to use the “facilities” matching the gender with which they identified as opposed to the gender of their birth.
Here’s the City of Charlotte’s now-moot explanation, taken from an official fact sheet: “The ordinance does NOT require the elimination of separate men’s and women’s facilities, and does not require a business to provide new or special restroom facilities. However, a business may not prohibit a transgender person from using the restroom or locker room consistent with the gender identified or expressed by that person.”
That was a simple-enough affirmation of respect for the dignity and practical needs of people who are transgender. But it gave H.B. 2’s backers all the excuse they needed to go to battle stations supposedly in defense of the privacy and safety of women and girls at heightened risk of being preyed upon by cross-dressing miscreants.
They ginned up bogus fears out of pure political expediency; as the fact sheet explains, anyone intruding into the “wrong” restroom could have been charged at the least with trespassing.
But riding the crest of those fears, Republican leaders in the legislature bulldozed H.B. 2 to passage in an “emergency” March 23 special session, and Gov. Pat McCrory – who still hasn’t demonstrated convincingly that he understands the bill and the damage it’s done – promptly signed it.
Now it’s McCrory who’s been left to try to defuse a national wave of mockery and economic protest that’s costing the state dearly in terms of lost jobs and forgone investments. Insensitive, one could say clueless, bathroom assignments aren’t the half of it.
That’s because legislators, not at all content just to slap Charlotte’s purported elitists and their liberal, big-city tolerance for gender-bending, went off the deep end into state-sanctioned bigotry.
As is likely now common knowledge in every one-stoplight town from coast to coast, H.B. 2 in effect forbids any North Carolina locality from extending anti-bias safeguards not only to the transgendered but also to those at risk of discrimination because of their sexual orientation.
The state could of course offer that kind of protection everywhere, both with respect to public accommodations and the workplace. But H.B. 2 – even as it sets public policy against discrimination because of race, religion, color, national origin, “biological sex” or handicap – leaves the treatment of gays, lesbians and transgendered people to the whims of business operators and employers.
No local protections. No state protections. It’s a pernicious double-whammy.
Compounding the insult to basic fairness, even those who ostensibly are covered under the law’s anti-discrimination policies are barred from pursuing alleged violations in the state’s courts. Federal courts remain an option, but an unattractive one given the difficulty and expense of mounting a federal case.
Failure to communicate
Except for the court access restriction, McCrory has steered around these problems with the law — problems that, after all, are driving the national backlash.
He continues to depict H.B. 2 as mainly a public safety measure, when there’s no discernible history of any danger related to transgendered people using restrooms in accord with their gender identity. He glosses over the state’s nose-thumbing posture toward the rights of gays and lesbians.
And rather than engaging openly and candidly with the law’s critics — which include major companies fearful that it will put a chill on recruitment and sales — he falls back on accusations of hypocrisy. Well, there may be some of that, for example on the part of companies doing business in truly repressive places such as Saudi Arabia. But the governor ought to be willing to address the critics’ points on their merits.
The principle that state law supersedes whatever North Carolina’s counties and municipalities might want to do is embedded in the state constitution, and there’s a solid argument for that approach.
Yet in a state with North Carolina’s progressive roots, the premise has been that the state would require any retrograde localities to raise their standards in such areas as the rules for access to public accommodations. H.B. 2, by contrast, prohibits a locality from reflecting the progressive standards of its residents and thereby exceeding the state’s minimal, inadequate anti-discrimination laws. That amounts to backsliding of a nauseating degree.
In a similar vein, McCrory seems to ask us to assume the worst of transgender people — to assume that someone who simply wants to use a restroom without embarrassment or inconvenience might well have some sleazy ulterior motive — that he, or more likely she, as the person now defines herself, is actually trying to cop a peek or some other perverse thrill.
No. Why not stipulate that transgendered folks, who clearly have hoed a difficult row in terms of their self-image and their place in society, are just like anyone else in wanting to live their lives according to their own lights and without harming others? In other words, grant that whatever they’re doing, they’re doing in good faith.
H.B. 2’s supporters can harp disingenuously about public safety until they’re blue in the face, but that won’t get them out from under the purview of federal judges charged with enforcing the Constitution’s guarantees of equal protection under the law.
On April 19, those supporters received a cold shower with the decision by a federal appellate panel in favor of a transgendered high school student in Gloucester County, Virginia. Gavin Grimm, born female, was allowed to press his legal case that he’s entitled to use boys’ restrooms, since he now identifies as male.
It’s encouraging that the judges agreed this teenager can seek a modicum of dignity as he grapples with an issue that goes to the essence of his being.
The Council of Churches understands that issues of sexuality are complex for many people of faith. Traditional notions of gender and orientation are deep-seated and, for many, a source of stability in a confusing world.
Yet the Council places a premium on the rights of minorities — vulnerable as they are to oppression of one sort or another — and on defense of the vulnerable among us. Sexual orientation, specifically, has been recognized as a characteristic that warrants a legal shield from discrimination, and gender identity is its close cousin.
H.B. 2 swerves far up onto the sidewalk, as it were, in an attempt to crush the rights of individuals who are simply acting in concert with their God-given natures. And it nullifies the understandable desire by locally elected governments to reflect their own community standards – an admirable impulse indeed when those standards are more enlightened than the state’s.
The legislature should roll back this ill-conceived law the first chance it gets — at least taking responsibility for cleaning up its own mess. Otherwise it can expect to be dragged by the federal courts to do its duty.