N.C. Trans Bathroom Law Survives as Fingers Get Pointed Everywhere

Both sides claim dishonesty from their foes.


HB2 protesters
Chris Seward/TNS/Newscom

Oh, no! I've written fake news! Based on what both sides in North Carolina were saying, I blogged with a high level of confidence that North Carolina's HB2 was going to be rescinded.

At the start of the week it really did seem like the legislature would rescind the controversial law that blocked cities from adding new categories to nondiscrimination laws and required trans people to use school and government-building facilities that matched the sex listed on their birth certificates. Outgoing Republican Gov. Pat McCrory called a special session, and it really seemed like it was going to happen. The compromise was that Charlotte would repeal its additions adding gender identity and sexual orientation to its discrimination laws, and the state would repeal HB2.

But then apparently everything went to hell. Charlotte's City Council did indeed rescind its law, but apparently not cleanly, and Republican legislators were left with the impression that they were going to look for a way to sneak it back into play. Charlotte officials say this wasn't the case. The city's site insists the law has been completely rescinded.

By yesterday afternoon Republican lawmakers had developed a new proposal. In order to rescind HB2, they wanted to implement a "cooling off" period for six months prohibited cities from doing the same things that HB2 forbid (amending antidiscrimination and public accommodation laws). Essentially, even after rescinding HB2, they wanted to keep the law in place for another six months.

In the end, nothing was passed or rescinded. HB2 will remain on the books. Charlotte rescinded its law for nothing (particularly since HB2 overruled it anyway).

How to interpret this from a libertarian perspective? As somebody with a dim view of what both Charlotte and the state legislature did, I'd say the ones who have lost out the most from this fight are transgender public school students. With HB2 still in place, schools are forbidden from fully accommodating transgender students (unless they've gotten their birth certificates changed, which frankly is an unnecessary imposition of government regulation of gender expression). While the law also forbids accommodation in other non-school government buildings, I'm going to guess there's probably not going to be a lot of "policing" there and not a whole lot of concern (studies suggest that men are more concerned about the safety of women in bathrooms than the women themselves are).

The entire fight could end up being moot eventually, as there's a legal push in federal courts to rule that discrimination on the basis of a person's status as transgender is already covered by federal bans on sex-based discrimination. There are some federal rulings in their favor, and the Supreme Court has accepted a transgender student's fight to use the boys' bathroom in his Virginia school for the next term. Technically, the incoming Donald Trump administration could vacate the case by rescinding the Obama administration's orders telling schools they have to accommodate trans students. But there are other federal cases about whether transgender issues are covered under federal sex discrimination laws, and it seems inevitable there will be a precedent established by the Supreme Court within the next few years.

There's been a thread of a libertarian-based argument that it should be OK—proper even—for North Carolina's state legislature to intervene and prevent cities from passing laws that restrict liberty. In this case, Charlotte's legal update required local businesses to accommodate transgender facility use. It was a mandate not just on government recognition but a violation of local business's freedom of association.

Larger governments telling local government what kinds of laws they can pass is bad, and I say that regardless of whether I support whatever law. If there is a civil liberty that is being violated, it needs to be tackled under a constitution or charter and then pushed to a court to rule upon. Why on earth should politicians outside of Charlotte have veto power over the laws of that city? Note in this coverage from the Charlotte Observer, a Republican senator dismissively saying he wants to prevent laws the "lunatic left of the city of Charlotte and other places want to enact." That senator is from Wilson, more than 200 miles from Charlotte.

When the citizens of the United Kingdom voted to leave the European Union, there was a big public debate over whether it was appropriate to allow its citizens such a vote. At the time I defended having a Brexit vote, arguing that the choice of who has the authority to use government force to regulate you is a fundamental component of democracy.

Even when I presented that argument, I knew full well that leaving the European Union didn't necessarily mean that British people would be more "free." And under its new Prime Minister Theresa May, the United Kingdom has implemented a law that granted itself some of the most intrusive surveillance authorities in the Western world. The European Union just this week declared that the country's intrusive data retention laws are unlawful. That is to say, the European Union is more concerned about British citizens' rights to privacy than their own national government.

It's still, though, the right of British citizens to decide whether they want to be part of the European Union. That I am probably not going to like some of the outcomes doesn't change my opinion.

When I bring that attitude back to North Carolina, it should be up to the citizens of Charlotte to decide what sort of additions to discrimination laws should function in their city. If their council members are not representing their constituency properly, that's a matter for elections (and for other forms of cultural and economic pressure, like boycotts or relocation). If the council members are passing ordinances that violate the federal or state constitution, that's a matter for the courts. I don't like Charlotte's law, I don't think it was necessary, and I think it's a violation of the right of free association. But HB2 wasn't the way to fix it and that was never the intent. It was for one political group to try to control the behavior of their ideological adversaries.