North Carolina recently enacted what has been a controversial law requiring individuals to use bathrooms that are consistent with the gender of their birth. This law completely rejects the goal of legally recognizing and protecting the gender identity of transgender individuals.
Laws that secure this right, and thus prohibit discrimination in the use of public accommodations based on gender identity, have been enacted by a number of States, beginning in 2008. Bathrooms in stores, theatres, and other premises open to the public present classic examples of public accommodations. A number of national businesses, including the NBA, objected to North Carolina’s law based on their commitment to ensure equal rights to the LGBTQ community. Members of the LGBTQ community, along with the referred to national business interests and various human rights advocates, concluded that the North Carolina legislature did not share the commitment to the inclusive and fair treatment of Transgender members of American society.
North Carolina and its supporters responded that the bathroom law was not an effort to justify discrimination against Transgender individuals, but to protect the privacy and safety interests of female users of bathroom facilities. The evil to be addressed by the law was the potential abuse of the non-discrimination norm by adult males intent on invoking the “right” of Transgender individuals to insist upon the “right” to “invade” women’s restrooms. Despite almost a decade of anti-discrimination laws, where the posited threatened harms never emerged, proponents of such “bathroom laws” contend that legal rules that protect individuals’ “sexual identity” by “allowing transgender individuals to use the bathroom with which they identify endangers privacy or creates a threat of sexual assault.” David A. Graham, North Carolina Overturns LGBT-Discrimination Bans, The Atlantic, May 14, 2016 [hereinafter North Carolina Overturns LGBT-Discrimination Ban
All kinds of potential constitutional, legal, and moral issues are raised by North Carolina’s bathroom law. North Carolina’s law also presents contestable questions of fact—the very sort that would have intrigued the legal realists of the twentieth century. One of these factual questions concerns why the law was enacted in the winter of 2016. The State’s governor, Pat McCrory, once the mayor of Charlotte, “blamed the city for starting the firestorm by raising the issue of gender identity and gender expression.” Quoted in, Katie Zezima, Charlotte set off the fight over the ‘bathroom law,’ Post Nation, May 10, 2015. It is certainly true that, after several years of trying, Charlotte enacted a new anti-discrimination ordinance in February 2016. The adoption of this ordinance did enable the State to describe the bathroom law, at least in part as a response the city’s ordinance “that extended new protections to gay, lesbian and transgender people.” Id.
But the State’s new “bathroom law” did more than override a particular local ordinance to the end of preventing a perceived threat to the privacy and safety of bathroom occupants. The new law, called the Public Facilities Privacy & Security Act, House Bill 2, first reaffirms the need to ensure basic civil rights against discrimination in employment or as to public accommodations. It thus prohibits “discrimination or abridgment” of equal treatment based on “race, religion, color, national origin, age, biological sex or handicap.” Part III, §143-422.2 (a) (emphasis added). Second, it forbids units of local government to, for example, impose “any requirement upon an employer pertaining to the regulation of discriminatory practices in employment, except such regulations . . . that are not otherwise in conflict with State law.” Part III, §143-422.2 (c) (emphasis added). State law, enacted by the legislature, thus establishes not only the floor of ant-discriminatory protection, but its ceiling as well.
So the law goes beyond overriding one particular law by the enactment of a superior state law. It actually bans the independent local protection of individual rights that exceeds the protection offered by state law. Garrett Epps thus correctly observes most of the law “has nothing to do with bathrooms and really isn’t even about trans people in particular. HB2 has a larger goal: to thwart any movement toward equality for the state’s entire lesbian, gay, bisexual, and transgender community.” Garrett Epps, North Carolina’s Bathroom Bill is a Constitutional Monstrosity, The Atlantic’s Politics and Policy Daily (May 10, 2016). He underscores that the new bathroom law “doesn’t just repeal LGBT civil-rights laws; it bars passing new ones.” Id.
In effect the law goes beyond the issue of sexual identity and the protection to be received by Transgender individuals. The ban on local law exceeding statewide standards is significant because state law already declines to offer any protection against discrimination based on sexual orientation or sexual identity. So the central features of North Carolina law includes (1) the choice not to offer statewide protection to the civil rights of gays and Transgender people, and to (2) preclude any protection of those same civil rights at the level of local government or at the level of executive action.
Political conservatives often express a strong preference for local control, but it is a long-established practice for socially conservative legislators to insist on statewide control of important social issues. The problem is that it is in various localities, such as communities containing major universities or cities where local government leaders are progressives committed to obtaining a more inclusive society, that there was success in securing equal rights to groups of individuals who had often been mistreated--especially those denied rights based on sexual orientation or sexual identity. As the culture wars heated up, and resistance to anti-discrimination laws became great in at least some states, gay rights activists historically found the answer in looking to smaller levels of government to obtain needed help.
The classic illustration is what happened in Colorado. Local bodies of government had adopted anti-discrimination laws, and the governor had issued an executive order forbidding sexual orientation discrimination in state employment. So anti-gay discrimination was at a low ebb, and law was making its contribution to the change. The solution was to adopt a similar strategy to North Carolina, except Colorado went so far as to adopt in a referendum a state constitutional amendment prohibiting local protection of gay civil rights. The amendment was invalidated in Evans v. Romer, 517 U.S. 620 (1996). In such cases, state conservatives simply place culture-war issues over their usual preference for local control. Graham, North Carolina Overturns LGBT-Discrimination Bans, supra.
There is much to learn from the advocacy opposing the advance of the civil rights of the LGBTQ community, and it goes beyond a particular controversy over a single ordinance. Advocates of the Colorado referendum in favor of a state constitutional ban on helping gays contended that the amendment was drafted to withdraw “special rights” illegitimately granted to a favored group. Advocates before the Supreme Court advanced the same argument in defense of the amendment, but the Supreme Court rejected it. See Romer, 517 U.S. at 626-27. Unsurprisingly perhaps, the exact same argument was advanced against the Civil Rights Act of 1964—that it would give African Americans “special rights.” See D. Michael Quinn, Prelude to the National “Defense of Marriage” Campaign: Civil Discrimination Against Feared or Despised Minorities, 33 Dialogue: A Journal of Mormon Thought 1, 50 (2000) (noting that a documentary on the civil rights movement indicated that blacks were “accused of seeking ‘special rights’ during the Civil Rights Movement of the 1960’s”).
Thus it is almost expected that some would assert that underlying the uproar generated by North Carolina’s legislation is “a perceived and unfounded perception that this law is discriminatory to the LGBT community.” Douglas Williams, The Truth About North Carolina’s Bathroom Bill, May 9, 2016. And, further, that “[t]his outrage has been directed toward North Carolina when 29 other states do not offer special protections to people who use the LGBT designation.” Id. (emphasis added) Based on this sort of reasoning, the author concludes that the “entire ordinance [adopted in Charlotte] was an enormous exercise in special interests compromising the rule of law.” Id. Laws against discrimination based on sexual identity, already adopted in a number of jurisdictions, is thus turned into special interest legislation rather than the protection of civil or human rights—and as undercutting the goal of obtaining the rule of law.
All of the above raises doubts as to the North Carolina crisis being the “fault” of Charlotte’s insistence on enacting an ordinance to secure the rights of Transgender individuals. Two factors reinforce that conclusion. The first is that, in the wake of the Supreme Court’s marriage decision, a multitude of states have adopted or were considering legislation designed to undermine that decision. Joshua Roberts, Everything You Need to Know About the Wave of 100+ Anti-LGBT Bills Pending in States, Reuters (2016) [hereinafter Anti-LGBT Bills]. Especially noteworthy has been reliance on religious freedom as a justification for denial of civil rights. Exemplary is Mississippi’s law which “lets any person or business deny services to same-sex couples because of religious objections.” Id. Consider the novelty of such constitutional argument. Any one who has read Loving, 288 U.S. 1, knows full well that sincerely held religious beliefs underpinned the traditional state prohibition of interracial marriage. But in the late 1960’s it never dawned on people to invoke that religious belief to justify a refusal to help facilitate such marriages or to decline any good or service to the resulting married couples.
The second is that, considering that there has been considerable experience under laws offering protection against discrimination based on “sexual identity,” it is important that experts conclude that such laws do not effectively grant “male sex predators entry into women’s rest rooms.” Roberts, Anti-LGBT Bills, supra. Two commentators have observed that experienced people in 12 states — including law enforcement officials, government employees, and advocates for victims of sexual assault — “have debunked the right-wing myth that sexual predators will exploit transgender non-discrimination laws to sneak into women's restrooms, calling the myth baseless and ‘beyond specious.’” Carlos Maza & Luke Brinker, 15 Experts Debunk Right-Wing Transgender Bathroom Myth, March 20, 2014 (recounting feedback received from officials in Colorado, Connecticut, Hawaii, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, and Vermont).
I have had relatives who quickly grasped the common sense arguments about the untoward possibilities if society grants its members unfettered discretion to assert their own gender identity. One thus insisted that it would have been better—even if we determined that granting the right to Transgenders to use the bathroom they choose has not produced harmful abuses—had we not publicized the right in a way that seems to invite such abuse. But this presents one more irony. Until this recent controversy, I could not have told you that we have relied on the rights recognized in “gender identity” legal protections for almost a decade. The folks with the strongest interest in setting forth the unhappy events that could be the consequence of granting such legal protections are those who would not grant such rights no matter the consequences. They simply lack sympathy for Transgender people