Trans

Compromise Kills Two Bad Trans-Related Laws in North Carolina

For a better solution, separate government and private treatment.

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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On Monday, in the spirit of compromise, Charlotte's City Council rescinded its additions to its antidiscrimination laws.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.

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  1. 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.

    Isn’t that the preferred Libertarian outcome?

    1. How can we be assured of this?

      “[HB2] 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.”

      Now the law has been repealed.

      Thus, municipalities can now try to raise the minimum wage and add new categories to the anti-discrimination laws.

      John, unless you have more faith in progs and Democrats than I do, you’re going to have to admit that soon enough, more NC municipalities (maybe Charlotte again) will try to impose minimum wages and new protected categories, burdening private businesses.

      When that happens, what will libertarians do?

      “OMG you violated the implied compromise! The state repealed the law which prevented municipalities from doing such things, and in return the municipalities were supposed to pinky-swear that they would refrain from doing the things they’re now allowed to do!”

      After which, of course, the state legislature, angry at the violation of of the compromise, will reinstate HB2.

      LOLOL, of course that’s *not* what will happen.

      Local governments will start passing the sorts of laws HB2 used to prevent, and the progs will cheer it on, and nobody except a few “reactionaries” will have the guts to try to reinstate HB2.

      1. Nice downer, Eddie. And I was about to join Shackford in feeling good about the compromise.

        In retrospect, yeah, that’s how “compromise” with proggies works. You either grind them under a boot, or they ground you. Fuck, welcome to another round of Transbathroom Wars in 2017, and 2018, and and and…

      2. Yeah, why can’t they just repeal the retarded mandated discrimination in public facilities portion of the law and leave the other part?

        1. Because Discrimination is Discrimination, and apart from a few Ayn Rand reading, selfish Somalia-loving libertarian fanatics, everyone knows that discrimination is either all bad or all good, and if it’s all bad nobody should be allowed to do it. Duh.

          /sarc

          1. Yeah but this is the same group of legislatures and same Governor that passed the law. Can’t they do whatever they want in a lame duck session?

            1. They wanted to arrange a “sellout” compromise in order to avoid the economic boycott by proggy businesses – and of course these businesses will never, ever, reflect that maybe it would be in their interest to *discourage* arbitrary business regulation.

              1. oops, a sellout “compromise” not a “sellout” compromise

      3. Maybe. But I think after this last election Progs may have had enough of this. This issue is a dead loser with most of the country. And progs are starting to realize it. I have a feeling they might move onto something else for a while.

        1. It’s not about “most of the country,” it’s about Asheville and Chapel Hill and other “progressive” municipalities in North Carolina which now have the green light to pass the kinds of laws HB2 tried to prevent.

          1. Probably. And that won’t be good but it will accomplish nothing except discredit them with everyone else. I think this issue has really done a lot of damage to the Prog cause. People look around at all the problems we have and then see the Democrats making this huge issue about men using the women’s bathroom. You couldn’t have invented a better way to make Democrats look like out of touch culture war fanatics if you had tried.

            1. Right, but so long as the progs still get to persecute businesses in the communities they dominate, and the broader community refuses to protect said businesses for fear of being called names, then all these national developments which you praise have political limits.

              1. And let’s distinguish between the Trump Phenomenon – the reaction against PC – and Trump himself – who remains a New Dealish Democrat and social liberal. He’s not as PC as his foes, but few people are. I get the impression Trump thinks Gay Rights are nice things.

              2. Those businesses will have to stand up for themselves. And yes those laws are awful. But they are not going to spread nationwide and will do more harm to the left than good.

                1. I’m not as sanguine as you are…I wouldn’t be surprised to see Trump, in National Reconciliation Mode, call for a gay-rights bill minus the bathroom stuff.

                2. “Those businesses will have to stand up for themselves.”

                  But they did! They got a state law to protect them from municipal oppression.

                  Now it seems these protections will be abolished.

                  That sounds like a triumph of political correctness to me. It’s backed up by an economic boycott.

                  Trump’s election isn’t protecting these businesses from the very real, direct harms of political correctness.

                  1. And if these businesses, after standing up for themselves, lose in a Republican legislature (which this post suggests is going to happen), then how do they expect to win in a Democrat-dominated city council in Asheville or some other jurisdiction where Republicans and conservatives are curiosities at best?

    2. If you are looking for the preferred Libertarian (or even libertarian) outcome, what makes you think you are going to find it in an article here?

  2. Does rescinding HB2 mean that the state no longer protects private institutions from setting their own policies on sex segregated facilities? If so, this is disarmament that is just a set-up for a renewed offensive by SJWs.

  3. In related bathroom news, the Denver city council just voted to disgender single-stall bathrooms in the city building code.

    1. This is excellent, because it’s the only logical response. At least Denver recognizes what the only reasonable reaction to the Bathroom Panic is.

      1. I don’t disagree with the law/decision, I do have to admit that the libertarian part of my soul dies a bit when people look at a government document and say, “That’s it! That’s how people should go to the bathroom!” As though parents of opposite gendered children and caretakers of the elderly haven’t been solving this problem for decades.

        I’d be interested to know how the single-stall bathroom issue plays out wrt urinals, whether efficiency will be mandated into both disgendered restrooms or if they’ll only give transgendered people token signage.

        1. Urinals are micro-aggressions, and will be outlawed. Duh.

          1. I like that the feministal war on urinals will result in a 100% increase of men peeing on the toilet seat.

            1. Peeing on the seat is a social construct.

            2. Do it in protest brothers!

              1. Apparently doing it at home is still bad, as I found out from the wife. Thanks for the heads up on that one!

                I tried to tell her it was for a cause. No dice.

    2. I enjoyed the comments by the father with a young daughter. I raised both of my children (one of each sex) by myself, and often had this problem. My solution was usually to find a “safe” looking woman and asking her to accompany my daughter into the bathroom, or if she was taking longer than I thought she should, I would have to ask someone to check on her for me.

  4. Back in our day we didn’t have bathrooms and everyone got along quite nicely.

    Clearly, bathrooms are the problem here.

    1. Airplanes and trains (and the occasional bus) in this country already have disgendered bathrooms, and have for as long as I have taken planes or trains, and the world has not, as far as I can tell, come to an end. Maybe there’s too much pants-soiling on all sides.

      1. The objections center around a crapper with more than one person capacity, not single user ones.

        1. FWIW, I don’t think I’ve ever been in a public restroom that had multiple crappers in a single stall

          1. I think Swiss is starting from a hypothetical utilitarian space. Whereas other people might approach this boondoggle from the view of their local restaurant that has two restrooms with two toilets and one low-flow or waterless urinal as mandated by law. Change the signage, buy and install a second urinal, or both? Will the girls-only candy machines need to be offered in both restrooms or no?

      1. Just don’t brush your teeth in the little “sink”.

  5. Compromise that was offered from the beginning, but resisted by Charlotte, because it was a good bludgeon for the Left to use in the gubernatorial race.

    Question: Why didn’t Reason shit its pants over the Charlotte measure like it did over HB2? A bill imposed on private business to fix a nonexistent issue (how often are businesses monitoring their bathroom usage?) is not government overreach?

    You guys play real fast and loose with what constitutes ‘libertarianism’.

    1. Reason and similarly-minded libertarians could have contributed to a genuine compromise.

      “Let’s pass a law that anyone can use any government-owned bathroom they want, regardless of whether they have dangly bits or not. The government mustn’t discriminate! Meanwhile, private businesses should not be subject to harassment from local governments over what they pay their employees, what benefits offer, and where their customers get to use the bathroom. Fair enough?”

      Of course, any libertarian offering such a deal would have been denounced as a homophobe for allowing KKKorporations to Discriminate against LGBLTs, blah blah blah.

      Those cocktail party invitations won’t extend themselves.

      1. (To be clear, I would have opposed the government-bathroom part of this compromise. That’s why I called it a compromise, not a “give me what I want”-mise.)

      2. It just amazes me how unprincipled Reason is. They sell out faster than a moonshiner in a dry county. And then they wonder why their version of libertarianism has accomplished diddly squat. Meanwhile, Ron Paul gets more electoral votes than Gary Johnson without even running.

        1. Yeah, well, maybe GJ will get some in 2020 or 2024, when he’s not running either!

          Because, let’s face it, that’s everyone’s favorite kind of Libertarian – the one that’s not actually doing anything. If he’s dead, that’s bonus points.

          1. I am/was a yuge fan of Harry Browne.

      3. This is the position that Reason, and especially Shackford (who is the main contributor on the issue), has always taken, including in this article.

      4. 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.

        What more do you want than that?

        1. This is the first time that Reason has even discussed the Charlotte ordinance. All of its frantic panic over HB2 neglected to ever mention the Charlotte measure. Meanwhile, other cities have passed the same ordinance as Charlotte and Reason has been silent. You can’t say that HB2 is bad if you fail to acknowledge how awful the Charlotte ordinance was, unless you’re the Washington Post or New York Times.

          1. You have a good point, so long as you don’t go back and read Scott or Nick on this issue.

            1. Cite your article.

              1. You are the one lying through your teeth.

              2. Here’s the original

                It’s frustrating to attempt to look at this issue from a libertarian perspective because it doesn’t really seem like either side in this particular culture war has any interest in separating government accommodation of individuals and the private sector. It ends up being all or nothing. Transgender and gay people should expect that the government accommodate their gender expression and sexual orientation and treat them the same under the law, particularly in areas like schools where attendance is mandatory. If you’re going to force transgender teens to go to your institutions, and you’re going to take money from their parents to fund it, you can very well deal with it. In the private sector, though, there’s no reason why cultural negotiation won’t work just fine to deal with the situation, particularly since in all likelihood, people aren’t even going to know when they’re sharing a bathroom with a transgender person anyway.

                And while I don’t believe that it’s necessary to expand public accommodation discrimination protection laws (mostly because so much of the public has come to accommodate LGBT voluntarily on their own), it should be a concern when a state tells individual cities what sort of laws it can and cannot pass.

                1. it should be a concern when a state tells individual cities what sort of laws it can and cannot pass.

                  When a state tells individual cities not to pass laws infringing on freedom, that’s a concern?

                  Are we equally concerned when the federal government tells states not to pass Jim Crow laws?

                2. “Transgender and gay people should expect that the government accommodate their gender expression and sexual orientation and treat them the same under the law, particularly in areas like schools where attendance is mandatory.”

                  Treat them the same…as what? If you have sex-segregated facilities, a male who thinks he is a girl having to use the boy’s room is being treated the same as any other male. It is treating that male different to suggest they have a right to use the girl’s room because of what they profess to think they are. The only way to have absolute “same” treatment is to eliminate sex segregated spaces from government institutions, which women will undoubtedly object to.

                  1. A few years back I helped coach my company’s softball team. The HR department required us to join a coed league (despite being an engineering firm, which meant we did not have anywhere equal numbers of male and female employees). The coed league rules required the team field an equal number of men and women at any given time, the outfield, infield and battery had to have equal numbers of male and female players, and the batting order had to male-female-male-female. This was done, because there was a great disparity in skill sets of the average male and female players and they wanted to maintain competitive balance. Of course, the league was run by the county parks department and I just do not see how it would be legal under if the government can under no circumstances make distinctions between male and female.

                    What Shackford is advocating has more far-reaching effects than just overturning by law bathroom etiquette.

                    1. Are you saying that men and women aren’t equal? Are trying to say men are superior at softball? Your reeducation starts soon.

              3. You made the first claim, broseph.

                Click the North Carolina tag above, go to the second page. Both have posts in March when HB2 was passed. I’d certainly would have made stronger denunciations, but they both give the standard libertarian answer that banning private discrimination is bad.

  6. On the alt-text, no, no they don’t, Scott.

    And they’re right. Absent CU, decisions on what is and is not permitted political speech lies with various government regulatory bodies. Democrats are confident (and with good reasons) that any decision regulators made will ultimately be to their benefit.

  7. I demand that the government force people to recognize me as Napoleon Bonaparte.

    OK, I may not have been born Napoleon Bonaparte, and I may be taller then the previous Napoleon Bonaparte’s but deep down I feel I am Napoleon Bonaparte and isn’t that what counts.

    So next time anyone sees me they should proclaim Vive la Emperor!!!!

    Or short version, You have the right to believe you are anything you want to believe, but you don’t have the right to make me believe it.

    1. How’s Russia this time of year, Your Majesty?

      1. I don’t like talking about Russia.

      2. How would he know, he left his army to fend for itself and fled back to Paris by the 18th?

        1. The urinals were all too high in Russia. What did you want him to do? Sit on the toilet like a girl, just to pee?

    2. Go back to France, Bonaparte! US has its own emperor, immortal and forever!

      1. Emperor Norton leaned many things from me.

    3. You are free to go change your name…

  8. When I read on this subject I don’t really get much out of it. I step back and look at it and it just looks like gibberish to me. The whole transgendered thing is just bullshit. This battle in the culture war, like most of the left’s causes, is nonsense dreamed up out of thin air.

    If you have a dick use the men’s room. If you don’t, use the women’s. In what way is some dude who thinks he is a pink flamingo harmed by having him use the men’s room? Forcing society as a whole to accommodate a deluded person’s fantasies doesnt right any wrongs in the world. The whole thing is just insane.

  9. 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.

    I’m curious Scott, how would one exercise the right to control one’s identity without invoking say, the ‘right to be forgotten’ or otherwise silencing free speech? I mean, a trifle of a “real thing” like actual demonstrable physical harm might make matters more clear, but you clearly state that it’s not necessary. I’m curious how your suggestion leaves legal and civil matters considerably, if any, less fucked.

    1. At heart this issue is about the ability to enforce one’s subjective reality on someone. i am a woman because i say so and you must agree to that regardless of the objective reality or you are a bigot. Transgenderism is totalitarian to its core.

      1. The left is always looking for “victims” of freedom to provide excuses to curtail it. Trannies are perfect in several ways.

    2. A couple years ago there was a progressive tempest in a teapot concerning a transwoman defrauding people in a scam involving golf equipment (I think). The writer had the gall to accurately report that the person had previously been a man and she skilled herself, blaming the exposure of her previously being a dude. The writer came into a whole lot of hate for publishing the fact she was a he, despite it actually having some tangential bearing on the story (for example, if you didn’t realize that Bob Jones had become Joan Roberts the evidence of Bob Jones’ actions wouldn’t make any sense).

  10. Any commentary on this issue without reference to the role of Dillon Rule vs Home Rule in the various states is worthless.

    1. Someone is a municipal code nerd. In the vast majority of states, with the exception of Alabama, I believe, a community automatically receives Home Rule status once their population reaches a certain population threshold (or they hold a referendum). What Home Rule entails in each state, though, is at the discretion of the State in which they reside.

      Ultimately, Home Rule and Dillon Rule is irrelevant, as neither provides sovereignty. Only a State maintains sovereignty and, therefore, can do whatever it pleases with relation to its local governments, despite their status as Home Rule. A local government cannot even sue a State for violating its Home Rule status if the State forbids their courts to consider the case. The primary reason why a local government can go bankrupt (if their state allows it) and why a State cannot (sovereign immunity- you cannot use the king’s courts against the king).

  11. There’s this from Equality NC and a state legislator, confirming what I’ve said that the progs will now try to pass local (and state) laws against private businesses who “discriminate”:

    “We look forward to working with Governor-elect Cooper to win protections *community by community* and statewide.” [emphasis added]

    The ink isn’t even dry on the “compromise” and of course the progs are off and running.

    1. IMO, Scott is even arguing in bad faith. His statement, 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. makes it sound like Charlotte just happened to overlook small businesses private property rights. When, if they had, HB2 could’ve been aborted by simply changing the ordinance. He rather plainly goes on to argue that he feels the protections should be imposed, just not all of them or only his pet protections.

      1. Scott has been arguing in bad faith on this issue since the beginning. Every time I point that out, I am accused of the crime of mind reading.

        1. I don’t know that I’ve ever disagreed with you. I’m just astounded that now it seems he’s even got Eddie jumping through the same presumption of truth hoops.

          1. I don’t know that I’ve ever disagreed with you.

            You need to step back and take a serious look at your life.

            1. Yes he does. So he can realize and appreciate how awesome it must be.

                1. Just because its your bliss Raven doesn’t mean it is the only bliss available.

  12. I’ve noticed that the commenters, as opposed to the Reason staff, have stopped trying to social-signal how much they are into Equality and how much they hate the right-wing homophobes. It seems that, unlike the staff, the commenters are realizing where the infringements on liberty are currently coming from.

    1. ‘Left libertarians’ are not ‘libertarians’. They’re progressives who have taken a Microeconomics 101 course.

      1. Ach, I forgot that McTavish is nae a True Scotsman!

    2. Actually I do hate homophobes.

      1. Well, I hate homophobia.

        I find that if you treat everyone with a basic level of dignity you can get along pretty well in the world. I am completely indifferent to what other people do with their genitalia or what kind of toys they like to play with. Leave kids alone and don’t force anyone to do what they don’t want to do and we will get along just fine.

        That is not what is going on with the progs and this issue.

      2. I hate homophones. They make conversation too confusing.

  13. I Quit my office-job and now I am getting paid 99 USD hourly. How? I work over internet! My old work was making me miserable, so I was forced to try something different, 2 years after…I can say my life is changed-completely!

    Check it out what i do:===> http://www.NetNote70.com

  14. My old work was making me miserable, so I was forced to try something different

    Couldn’t choose your own bathroom at the office, huh?

  15. 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.

    This is wrong. HB2 also had provisions to accommodate trannies by letting them change their birth certificates.

    I’m a little baffled by why a libertarian would consider a law that prevented localities from violating freedom of association and contract to be a bad law, and why striking it down to allow localities to violate these freedoms is a good thing.

    I guarantee you that Charlotte will pass another public accommodation law for trannies, and we will read articles here celebrating the erosion of actual freedoms, and the expansion of identity group privileges.

    1. I’m a little baffled by why a libertarian would consider a law that prevented localities from violating freedom of association and contract to be a bad law, and why striking it down to allow localities to violate these freedoms is a good thing.

      Because Scott is a cultural leftist who doesn’t understand how that is incompatible with embracing freedom. That is why.

    2. “blocking them from accommodating many transgender people.”

      They aren’t provided with an available bathroom? If yes, then they are accommodated.

      8 year old girl to her mom –

      “Mommy, I don’t want to pee with that strange man in the bathroom”

      ^^^^Not Accommodated^^^^

    3. Who was checking birth certificates at the door?

      1. Who was checking birth certificates at the door?

        Nobody.

        I could see the birth certificates used a couple of ways. First, if you work in a government building (or are a student), you can pre-clear your use of the other bathroom by showing it to your boss. Second, if you get a complaint, whip out your birth certificate to get off the hook.

  16. 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.

    Bullshit. Utter bullshit.

    The purpose of the birth certificate is to document an objective event and the condition of the born person. Neither government nor individual has the right to decide the information contained in it.

    You can’t decide to change your birth date. You can’t decide to change who your birth parents were; you can’t change your birth weight or length. So why should you be able to decide that you have a different birth sex?

    1. Why is transgender any more of a problem than “same-sex” marriage? In both instances we have a group of people using the threat of government violence to force others to change their views of reality.

  17. HB2 was going to be a dead duck under the new governor anyway.

    NC is crying uncle from various multinational corporations and publicly-funded organizations boycotting it over this issue. Funny how the left is willing to let the EEVILLL corporations dictate to the People what they are allowed to do in this case.

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