NC House Bill 2: Discriminatory at Best, Unconstitutional at Worst

“Before this bill was passed, I was nervous to be a trans person in North Carolina; I was especially nervous in bathrooms. I worried that someone would somehow notice that I didn’t have the same parts as them or read me as female and harass me,” said Connor Smith, a transgender man living in North Carolina. “Now that this bill has passed, it’s terrifying, because if my worst fears come true, I feel like I won’t have the law on my side. And all of this just for trying to pee!”

Connor’s comments highlight the fear that many transgender people in North Carolina are feeling about the passage of House Bill 2, an increasingly controversial piece of legislation regarding bathroom access for the transgender community and, even wider, equal accommodation access for the entire LGBT community.

House Bill 2, titled the “Public Facilities Privacy and Security Act,” is at its heart a discriminatory piece of legislation that puts North Carolina on the map as one of the least LGBT-friendly states in the nation. The bill passed during a special session of the North Carolina General Assembly and was signed into law by the governor, all over the course of one day.The law’s discriminatory nature, the rhetoric surrounding its passage, and the spirit behind it show the intense disconnect between the leaders of North Carolina and one of the most vulnerable communities they are supposed to be protecting.

The first problems we see occur within the bill itself. It dictates that in schools and public buildings, multiple occupancy bathrooms must have a designated sex assignment and users must use the bathroom corresponding to the sex listed on their birth certificate. This disallows transgender people who have not changed their birth certificate (quite an ordeal in itself) from using the bathroom corresponding to their gender identity. For transgender people, and particularly transgender women (who are 1.6 times more likely to experience physical and sexual violence when compared to other survivors), going to the bathroom can already be a stressful event. It just became even more anxiety-inducing for members of the North Carolina trans community, as many of them will now be under pressure to use the bathroom they feel they don’t belong in.

Language in the bill specifies that single-occupancy restrooms are not banned in public areas, but this simple nod to the transgender community is not enough. If the House, the Senate, and Governor McCrory truly cared both about protecting sexual assault victims and ensuring safety for trans North Carolinians, the bill would have mandated single-occupancy restrooms in public spaces. These could facilitate solutions to the problems on both ends: trans people would have a space they felt safe, and if someone uncomfortable sharing a bathroom with a transgender person, they would also have a place they would feel safe using the restroom. However, the bill did not mandate them, it simply said it would not ban them; more action in this area would be very welcome in order to try to solve a public issue (the assignment of bathroom space) without discriminating against or endangering any at-risk population, be it trans people or women.

The bill obviously fails the test when viewed in light of the 14th Amendment of the U.S. Constitution, which requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” Designed to protect an at-risk population (African American people), the 14th amendment is intended to ensure that no laws single out or discriminate against a certain subset of the population, and it applies to legislation such as House Bill 2, which will prove to be a danger to members of the transgender community.

In addition to legislating a principle that will put transgender people, an already at-risk population, in a position even more precarious, the bill does something almost laughable if it weren’t such a serious issue: it bars cities and counties from legislating equality for the entire LGBT community. By preempting legislation that would protect members of the LGBT community from accommodation and goods discrimination in public spaces, the representatives that introduced this bill and the governor that signed it have erased years of protections built to prevent LGBT people the injustice of being discriminated against because of their sexuality.

The rhetoric used by proponents of House Bill 2 is also a serious issue. Those who signed the bill into law falsely frame it as a piece of legislation that will protect women and children from sexual assault. This is harmful both because the idea that this bill will protect women is false and because it furthers a negative image of the transgender community. Of course sexual assault is an important issue and any piece of legislation that enables it should be struck down, but House Bill 2 does nothing to protect people from sexual assault; in fact, it has the potential to increase physical assault cases for transgender people now having to use the restroom of their biological sex. The logic behind this bill is faulty because it assumes that because a restroom is designated “female,” it will stop rapists from entering. A sign on the door that a restroom is for females will not deter someone intending to assault a woman; in fact, it may even create an unsafe space by making that restroom a target.

The notion that a rapist could use the Charlotte ordinance (which allowed people to use the bathroom of their gender, regardless of their birth certificate) as legal defense is ludicrous. Sexual assault is sexual assault, regardless of someone’s gender identity, and no male (or female) aggressor could use the argument that they are transgender to justify their assault of anyone. In addition, rhetoric such as this paints the transgender community in a bad light, causing a bias in public opinion to think “rapist” every time the word transgender come up; this is unfair at best, slanderous at worst.

Time Moore, Speaker of the North Carolina House of Representatives, said “The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.” His comment demonstrates the lack of understanding and lack of respect that seems to be almost endemic among North Carolina legislators. Laws that protect transgender people would not allow a man to go into a woman’s bathroom because, by nature of his choosing to remain a man, he has created his preferred gender distinction and would be held to it. Lawmakers are not understanding, or choosing to not understand, that people undergoing transition desire to be the gender they are transitioning to, and do not want to invade the privacy of others any more than they want their own privacy invaded. Comments like his paint cis-gender people as the victims of transgender laws, when in fact there is not evidence of any harassment of cis-gendered people by transgender people; in fact, the opposite is usually the case.

While both the bill and the rhetoric used in defense of its passage are harmful in their own right, the spirit and purpose behind the bill are perhaps the most chilling aspect of the whole situation. Inspired by a Charlotte ordinance that sought to protect its transgender population, the North Carolina legislature asserted dominance and passed a bill that would reverse the effects of the ordinance and prevent any similar protections in the future. In short, the North Carolina legislature saw something it didn’t like and abused its power to strip an at-risk population of protections that one city (like over 200 who made similar decisions) deemed appropriate.

By standardizing anti-discrimination standards across the state to include biological sex, race, religion, color, and national origin, the state claimed to be simply following the federal standard for protection. The thing is, they’re not wrong: they are only fitting the federal standard, but by doing so, they are turning down the opportunity to be a leader in the fight for rights for our LGBT neighbors and friends. Days after this legislation was passed, the Governor of Georgia vetoed a “religious freedom” bill that would have allowed for businesses to discriminate against LGBT people; in doing so, he has become a leader and a torch-bearer for a community who is in desperate need of representation, while North Carolina and its governor remain in the ranks of those who discriminate against them.

The most disturbing part of the bill, though, is its vindictive nature. Not only does the legislature not want to legislate equality for the LGBT community, it wants to prevent cities from doing so. Language in the bill enjoins cities or counties from requiring service to be administered to any group of people; cities may only follow the state standard protections. This perverse twist of state power is actually sickening and not in the spirit of what central governments are supposed to be able to do. Sweeping standards are meant to provide a bare minimum and not prevent constituent bodies from providing additional protections, but North Carolina leaders seem to think that’s an appropriate thing to do. This bill, under the guise of protecting people from sexual assault, not only denied transgender North Carolinians the right to use the bathroom of their preferred gender, but swept away decades of civil rights legislation in a blatant, petty show of state power.

This bill sent a clear message to LGBT North Carolinians: your state government will not protect you from discrimination, and we don’t want anyone to be able to protect you. It also devalued trans people and the struggle they go through, dehumanized them in the public sphere with dangerous rhetoric, and attempted to hide behind the guise of protecting women (in itself a very noble goal) with legislation that will not do anything more to protect women than the current signs on bathroom doors.


The silver lining? It only cost the taxpayers $42,000.


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1 Comment

  1. I just really can’t see the outrage here. What exactly is so ridiculous about stating that mens’ rooms are for men and womens’ room are for women? I know we’re supposed to get up in arms every time someone does something anti-LGBT, but is this particular thing really so discriminatory?

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