Compromise Kills Two Bad Trans-Related Laws in North Carolina

For a better solution, separate government and private treatment.


Gov. McCrory
Timothy L. Hale/ZUMA Press/Newscom

The saga of North Carolina's House Bill 2 appears to be coming to a close. HB2 drew national attention, courted controversy and boycotts, and quite possibly contributed to both N.C. Gov. Pat McCrory's defeat at the polls and—paradoxically—Donald Trump's victory.

HB2 was most famous for mandating that people in public schools and government buildings use the bathrooms and any gendered facilities as the sex listed on their birth certificates, blocking them from accommodating many transgender people. The law also forbid cities from either raising minimum wages above those the state mandated and also forbid cities from adding their own protected categories to anti-discrimination laws.

The state law was a direct response to outrage from conservatives over Charlotte's City Council adding sexual orientation and gender identity to all its antidiscrimination laws. This included public accommodation laws, meaning both public and private entities would be obligated to allow transgender people to use the facilities of their chosen sex.

Thus came the great transgender bathroom panic of 2016, also fed by pushes from the Departments of Justice and Education to require all schools across the country to provide similar accommodations.

On Monday, in the spirit of compromise, Charlotte's City Council rescinded its additions to its antidiscrimination laws. And now McCrory has responded by calling for a special session of the state's legislature to strike down HB2. So in the end, everything will be back the way it was at the start, like your average sit-com. (McCrory is complaining that the way Charlotte immediately folded after he was ousted is proof that the true goal was to get rid of him.)

The outcome will be that neither Charlotte nor the state of North Carolina as a whole offer protections against discrimination on the basis of sexual orientation and gender identity. Note that—as I have corrected bad reporting previously—eliminating HB2 does nothing to actually add LGBT protections. In fact, the state could have added LGBT protections to antidiscrimination laws and keep HB2 intact. But that's a whole different issue.

Both Charlotte's ordinance additions and HB2's mandates were bad regulations that attempted use the law as a hammer in a culture war rather than carefully considering the personal liberties of all parties involved. A transgender person should be able to identify himself or herself to the government as he or she sees fit (assuming no effort to defraud the government or others). The purposes of things like birth certificates should be for us to tell the government who we are, not for the government to tell us who we are. As a legal and civil liberties matter, whether transgender is a "real thing" should not be relevant to our right to control our own identities.

But to demand that private entities come along for the ride or face fines or shutdowns by government agencies denies those people the right to decide for themselves how much to accommodate others, and that has led to a massive backlash. There is little sign that the fear of predators posing as transgender people in order to target children or women is based on actual threats. But the rush to use the law to bypass the necessary cultural shifts to help transgender people achieve public acceptance got drawn into the tiresome "public correctness" fight that helped drive this election, and it didn't need to.

There are signs that acceptance of transgender Americans is improving, bathroom conflicts aside. When you use the law to try to force agreement through threat of fines or force, the battle then becomes over who controls the law. And it assumes that there must be winners and losers and not a society where people work things out with each other through negotiation, debate, and influence.