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While the LGBT community won a significant victory at the Supreme Court last year when it came to same sex marriage, transgender individuals are now pressing for constitutional protections of their rights, namely their right to express their identity. The public space that they are contesting are public restrooms, where transgender individuals argue that they should have the right to use the restroom of the gender that they affiliate with. Social conservatives in states such as North Carolina are appalled by this demand, warning that it will threaten the safety of women and young children. In late March, North Carolina passed the Public Facilities Privacy and Security Act (HB2), which legally requires transgender people to use the bathroom that corresponds to the gender on their birth certificate. The law also makes it more difficult for transgender to sue their employer for discrimination. Critics allege that the bill reverts to a new system of segregation and that it could endanger the mental health of transgender individuals. Some businesses such as PayPal have already cancelled expansion plans in the state and there is evidence that a tourism boycott is developing. As with most social issues, the fate of the so-called “bathroom bill” is bound to end up in the courts, which have thus far demonstrated that such legislation goes against the U.S. Constitution.
This topic brief will provide extempers with some terminology they should be aware of when discussing the North Carolina “bathroom bill,” analyze the arguments made in favor of the legislation, and then arguments for why North Carolina should consider repealing the law.
Readers are also encouraged to use the links below and in the related R&D to bolster their files about this topic.
Important Vocabulary
“Always Welcome” Campaign: Marketing campaign by the city of Charlotte, North Carolina to argue that the city stands for inclusion. Charlotte was looking at establishing a local ordinance that would protect the ability of transgender individuals to use the restroom of their choosing, but House Bill 2 (HB2) pre-empted this by denying the ability of local communities to issue such legislation. The city worries that HB2 will hurt the city’s convention business, costing it millions of dollars.
Pat McCrory: The Republican governor of North Carolina. He served as the mayor of Charlotte between 1995 and 2009 before winning office in 2012, thereby becoming the first Charlotte mayor to become the state’s governor. Some analysts think that McCrory is using the “bathroom bill” debate to further his re-election chances this fall by driving out the vote of social conservatives. Aside from the HB2 controversy, McCrory has angered liberals in North Carolina over his support for school vouchers, more stringent voting laws, and support for more restrictions on abortions.
Public Facilities Privacy and Security Act (HB2): Also referred to as House Bill 2, this is the North Carolina legislation that has sparked the latest controversy. The bill prohibits transgender individuals from using restrooms that do not correct to the gender on their birth certificate. Supporters argued that it was necessary to prevent transgender women (who were born male) from entering women’s bathrooms. Localities cannot pass legislation contravening this provision and it becomes harder under the bill for transgender people to sue their employers for discrimination.
Title IX: Refers to part of the U.S. Education Amendments of 1972. It calls for individuals to not be excluded from participation in activities on the basis of sex and to not be subjected to discrimination in any education program that receives federal assistance. The Justice Department has interpreted Title IX as protecting the rights of transgender students to use the bathroom facilities of their choice in school, angering more conservative local communities.
Transgender: Refers to an individual that does not identify or conform with the prevalent patterns of their gender. This has become a more recognizable category in the LGBT movement within the past decade as individuals who once classified themselves as transgender were deemed in need of mental health services. It has been reported that twenty-nine states and more than 10,000 U.S. localities do not offer antidiscrimination protections to transgender people. It is also estimated that there are 700,000 transgender individuals in the United States.
Arguments in Favor of HB2
Allowing for Inclusive Restroom Policies Denies Fundamental Truths: Critics of inclusive restroom policies, such as those advanced by Charlotte before HB2, say that they are really trying to undermine core truths that America rests upon. They explain that if the law is going to recognize how people self-identify then it refutes truth that is “scientifically demonstrable and verifiable.” Other arguments that mirror this complaint note that if a middle-aged white man identified as African American would that mean that they should have that right respected and be eligible for federal programs geared toward aiding racial minorities? A Fox News article on this issue (provided below) even posits that if a middle-aged American identified as elderly that they could have a legal case for Medicare if the federal courts rule in favor of transgender individuals to have their own truth adopted by the rest of society although it contravenes biology.
The Law Allows for the Rights of Transgender Individuals to be Accommodated: Supporters of HB2 have criticized the public outcry against the legislation by saying that it provides a way for transgender individuals to be accommodated. The law does not ban the ability of private businesses or schools to have single-occupancy restrooms that any gender can use. The argument is that transgender individuals can use these restrooms so as to avoid controversy.
The Legislation Protects Women: Supporters of HB2 claim that allowing men (defined in this case as those who were born male) to use women’s restrooms in any fashion, even if they were transgender, could constitute a safety threat. They have raised the specter of men faking that they were transgender to enter women’s restrooms and locker rooms under “inclusive” bathroom bills and assaulting women or young girls. Critics of inclusive policies relate the example of the city of Seattle dealing with a man who was not transgender entering a girls’ locker room twice in one day to see if the city’s ordinance protecting the rights of transgender people would allow him to do this unopposed. Those who use this argument also say that it protects those women who have been physically or sexually assaulted in restrooms or other surroundings from further trauma.
Arguments for the Repeal of HB2
The Bill is Causing/Could Case Economic Hardship for the State: After HB2 was passed, several businesses announced that they were halting expansion plans in North Carolina. This included PayPal, whose decision to jettison its expansion plans will cost the state an estimated 400 jobs, and Deutsche Bank followed suit. The National Basketball Association (NBA) has indicated that if HB2 is not repealed that it will look into moving the 2017 All-Star Game out of Charlotte and several entertainment stars such as Bruce Springsteen, Bryan Adams, and Ringo Starr have cancelled performances due to the legislation. North Carolina is the second-largest economy in the Southeast, ranking just below Florida, so these business actions could hurt its forward progress, especially as a rising technology hub. For example, Google has said that it will not put venture capital into the state as long as HB2 remains the law. The state’s tourism industry, which is a significant driver of its economy, is also being affected as some groups have vowed not to visit the state. The New York Times explains that travelers spent $21.3b in North Carolina in 2014 and Charlotte could lose more than $2.5 million in convention business.
The Law is Unenforceable and Unconstitutional: The first sub-argument that is made against HB2 under this heading is that there is no way that North Carolina can reasonably expect to enforce the legislation. The law says that individuals need to use restrooms that match the sex given on their birth certificate, but does this mean that state police or officials are going to sit outside of all of the restrooms in the state and check to make sure people are complying? Will they demand individuals’ birth certificates? Another sub-argument is that the courts will soon find HB2 unconstitutional so the state is wasting taxpayer dollars in a quest to eventually prove that it is allowed. Recently, the Fourth Circuit Court of Appeals held in a 2-1 decision that sixteen-year-old transgender student Gavin Grimm should be able to use the boys’ restroom and that the Gloucester County School Board violated Title IX when it refused him access. Legal strategists say that this is a precedent for undermining HB2, noting that the law is unjustly discriminatory and violates the Fourteenth Amendment’s equal protection clause.
The Mental Health of Transgender Youth in North Carolina Could Be Harmed: Recent evidence on the mental health of transgender youth suggests that laws such as HB2 can heighten anxiety and the risk of suicide for transgendered teenagers. For example, a recent survey showed that 63% of transgender youth avoided school restrooms because they felt unsafe and 52% avoided locker rooms. Also, studies from places such as UCLA suggest that 41% of transgender Americans attempt suicide at some point in their lives (this contrasts to the general population’s rate of 1.6%) and that states that have taken action against the LGBT community have higher rates of mood disorders and anxiety disorders from this segment of their respective populations. Critics of HB2 say that as long as it remains on the books it will create a stigma toward transgender individuals, creating further problems for the community and having a negative impact on stemming teenage anxiety and suicide rates.
There is No Threat to Public Safety: Opponents of HB2 refute the claims made by social conservatives that inclusive bathroom laws will create a threat to women by noting that there has not yet been a case of a man masking themselves as transgender that assaulted a woman in a public restroom. They note that the language used against transgender individuals in defending HB2 mirrors that of the era of segregation, where white supremacists warned that allowing African American men near white women would endanger the physical and mental safety of those women. Since opposition to inclusive bathroom bills is arising from several major states of the old, segregated South such as Georgia, Mississippi, and North Carolina, this has been a historical parallel that is very difficult to ignore. It is notable that women’s organizations in North Carolina such as North Carolina NOW (its branch of the National Organization for Women), North Carolina Women United, and the North Carolina Coalition Against Sexual Assault have issued condemnations of HB2.
Sources
“Donald Trump’s Case for Tolerance” (The Atlantic, April 21, 2016)
“Enough With the Potty Talk” (U.S. News & World Report, April 22, 2016)
“North Carolina ‘Bathroom Law’ Violates the Constitution” (Detroit Free Press, April 16, 2016)
“North Carolina’s Anti-LGBT Law is Not the Way to Keep Women Safe” (The Nation, April 21, 2016)
“Obama: North Carolina’s Bathroom Law ‘Should be Overturned” (National Public Radio, April 22, 2016)
“Restroom Unrest” (Inside Higher Education, March 28, 2016)
“That Dumb Bathroom Bill in North Carolina” (The Huffington Post, April 22, 2016)
“The NBA’s All-Star Game May Move From North Carolina” (Fortune, April 22, 2016)