North Carolina’s HB 2, aka the “bathroom law,” has provoked outrage and ridicule in equal measure. The feeble defense the law’s supporters are putting up invites speculation about their real agenda. Unless safety concerns track religious belief for some hitherto unnoticed reason, it’s worth wondering why faith-based organizations in particular have been so vocal in raising alarms about the depredations this law is supposed to spare everybody.
According to CBS News, the Liberty Counsel, based on Orlando, Florida, drafts anti-LGBT legislation to “protect religious freedom.” Also on the ramparts against the LGBT “threat” is Arizona-based Alliance Defending Freedom, Mississippi-based American Family Association, and the Ethics and Public Policy Center, a think tank whose web site describes it as Washington, D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy. I’m sure there are others I’m missing.
It’s hard to credit their tender regard for the safety of women and girls against rapacious transgender people or, depending on who’s sounding off, wily transgender impersonators, since North Carolina’s bathroom law is actually pretty lame. Once you understand it, it doesn’t seem to afford any more protection than laws currently on the books prohibiting all sorts of untoward behavior in restrooms and similar venues.
The girls in a Wilmington, Delaware, high school who got into a restroom fight costing a classmate her life are being treated to a crash course, so to speak, in some of those laws right now. Ditto for the University of Georgia student recently indicted on a felony count of invasion of privacy for using a cellphone to take pictures of women in a campus restroom. And then there’s the guy in Chicago charged with aggravated kidnapping, aggravated battery of a child, and aggravated battery of a police officer after he was arrested for choking an eight-year-old girl to unconsciousness in a restroom. All of these things happened without benefit of laws giving transgender people access to restrooms corresponding to their sexual identify.
The one incident that keeps coming up featuring a transgender person is the by now famous episode at Evergreen State College in Olympia, Washington. What apparently happened there is that a couple of teenage girls, perhaps in a place where they weren’t supposed to be, caught a glimpse of a surgically unaltered transgender woman who was in a spa, designated for adults only, where she had a right to be. The girls’ parents complained but the local prosecutor didn’t think he had enough to bring a case.
So what about North Carolina’s bathroom law? How’s it going to make public restrooms, locker rooms, changing facilities, etc., safer than they would be otherwise?
The bad or good news, depending on your point of view, is that it applies only to multi-use facilities in public schools and other property controlled by “public agencies.” In public schools, it applies only to facilities “designated for student use.” So the vast private sector where most of us spend most of our time is beyond its reach. Private enterprises and institutions are free to work out their own arrangements. And single-use facilities anywhere may be used by anybody. So for the unisex single-use restrooms we’re seeing more and more, no problem.
But even in public sector multi-use facilities, the law isn’t as exclusionary as you might think, for three reasons. First, because many media outlets have been breathlessly reporting on it without having taken the ten minutes required to read it, there’s a lot of confusion about exactly who’s barred from the designated areas. Some, including heavy hitters like columnist Leonard Pitts, PBS News Hour anchor Judy Woodruff, a CBS News talking head, the Raleigh News and Observer and the Washington Post, think that the law restricts people to the facilities that correspond to their “birth sex.” That’s wrong. What it does is restrict people to the facilities that correspond to their “biological sex,” defined in the law as the “condition of being male or female, which is stated on a person’s birth certificate.”
Although I saw a Washington Post piece that apparently thought “birth sex” and “sex on one’s birth certificate” are synonymous, using them interchangeably in the same story, they’re not and the difference matters. North Carolina is one of forty-eight states that allow transgender people who’ve had sex reassignment surgery to petition to get their birth certificates revised accordingly So the law doesn’t bar transgender people from the facilities it covers. If you’re transgender and have jumped through the necessary surgical and legal hoops, you may pee, change clothes, etc., in facilities matching your gender identify. `
But, second, the law is even more porous, including as it does a whole bunch of exceptions to the birth certificate rule. It doesn’t apply to janitors, maintenance people, medical personnel, a school board employee, volunteer, parent or caregiver helping a student, and an otherwise unspecified person who enters the facility to help someone not a student. There’s one other exception that makes no sense to me but seems to allow access to pretty much anybody. In facilities other than schools, a child under the age of seven can enter the “wrong” restroom if accompanied by a person who cares for him or her.
So if people are all aquiver at the prospect of somebody falsely claiming transgender status as a pretext to enter a multi-use facility and attempt unseemly acts on other occupants, they should be advised that the law they’re stoutly defending provides a generous menu of other pretexts for people up to no good.
But it gets better. Or worse if you’re invested in this measure. When Samantha Michaels of Mother Jones cold-called some North Carolina police departments asking them how they planned to enforce the birth certificate rule, they had no clue except for the Asheville PD, whose spokeswoman said a very interesting thing. The bathroom law is a civil, not a criminal, law, she said. So it creates only a civil cause of action, not a criminal offense. Apparently confirming Asheville’s theory, a co-sponsor of HB 2 told a television station, “There are no enforcement provisions or penalties in HB 2. Its purpose is to restore common sense bathroom and shower management policy in public buildings, not to pick out people to punish.”
Fair warning here. I’m not a lawyer, so nobody should go to school on what I say about this. But, for what it’s worth, here’s my best layman’s understanding of how this is all supposed to work. And it looks like the wives and daughters for whose alleged benefit the law was enacted are pretty much on their own when it comes to enforcement.
Violators of the birth certificate rule don’t get arrested and charged. They get served and sued. But that happens only if (a) someone harms you, (b) you know who they are, (c) know where the process server can find them, (d) can find and afford a lawyer who’ll take the case, (e) had the presence of mind of take a picture of the conduct at issue, (f) and/or can round up enough witnesses willing to testify, (g) and, since you bear the burden of proof, can prove by a preponderance of the evidence that the person you’re suing did what you claim. And if the defendant has no assets, even if you win after all this, you can’t recover any damages.
If I’ve got this more or less right, a couple of things emerge. For one thing, North Carolina is “protecting” its wives and daughters by burdening them with do-it-yourself enforcement in civil court. I don’t know how much comfort they’ll find in that. For another, the birth certificate rule is basically irrelevant in restrooms. If transgender people, whether or not having gone the distance with sex reassignment surgery, go into a multi-use restroom corresponding to their sexual identify, call no attention to themselves, create no disturbance, just take care of business and leave, that seems to be a case of no harm, no foul. So a surgically revised but not yet legally certified transgender woman was wrong when she said at [email protected], “As soon as I placed a foot in the women’s bathroom in Hyde Hall on University of North Carolina Chapel Hill’s campus, I was breaking the law.”
Considering what a weak reed HB 2 is for anybody to rest their safety on, it’s a reasonable guess that the alarms being sounded by faith-based proponents are really proxy for something else. How about this? They think transgender people have earned stigmatizing for the same reason they think any sexual minorities have. In other words, just as they don’t think homosexuality is “real,” but at best just remediable “confusion” or, even worse, willful perversion, they think the same is true of transgender people. Both populations are messing with God’s creation and the imperatives He’s built into it.
But if the real purpose of measures like North Carolina’s “bathroom” law is to express disapproval, based on religious belief, of sexual minorities, elected officials sharing those beliefs or cultivating constituents who do can’t be honest about that because they’d risk running smack into the Establishment Clause of the First Amendment to the U. S. Constitution. That’s the part, remember, that says, “Congress shall make no law respecting the establishment of religion….” Since courts have held that the Fourteenth Amendment extended this prohibition to the states, what we get in defense of laws like HB 2 is hyperventilating about predators, privacy and all sorts of other feints distracting from what’s really motivating them. Sadly, all that posturing just makes this issue much more fraught than it has to or should be.