By Ivan Mercado
Last week, North Carolina’s Governor, Pat McCrory, signed a controversial bill blocking cities from allowing transgender individuals to use public bathrooms for the sex they identify as, as well as restricting cities from passing broader nondiscrimination laws. During recent discussions about the so-called North Carolina “bathroom law”, many, including Governor McCrory have argued that the law was in large measure an attempt to protect privacy rights. Protecting privacy in bathrooms is something that I am sure we can all stand behind. However, it is important to take a closer look into this position and see who’s privacy we are protecting and why.
On March 23, North Carolina’s General Assembly proposed and passed House Bill 2 (HB2) — or the “bathroom bill”— and Gov. McCrory signed the legislation that same evening. This dramatic action was motivated by an effort to effectively repeal an ordinance that had been passed by the City of Charlotte. On February 22, 2016, the Charlotte City Council had approved amendments to the city’s Non-Discrimination Ordinances which prohibited discrimination based on race, color, religion, and national origin. These amendments added marital and familial status, sexual orientation, gender expression and gender identity to the list of protected characteristics. However, the ordinance also contained a provision that would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify, and not necessarily the gender stated on their birth certificate.
As a direct response to the Charlotte ordinance, the Republican led North Carolina Legislature set in motion the process for the immediate passage of HB2. HB2 establishes that the state’s law on antidiscrimination preempts any local action on the same issues, making it impossible for cities and local governments to expand protections in “employment” or “public accommodations” beyond those set forth by the state. As to bathrooms, HB2 sets forth that:
“…Local boards of education shall establish single-sex multiple occupancy bathroom and changing facilities….” [And use of those facilities shall be limited by,] “[b]iological sex. – The physical condition of being male or female, which is stated on a person’s birth certificate.”
Following the signing of H2B, Governor Pat McCrory released a statement:
“The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman’s bathroom, shower or locker room.
McCrory again repeated, and clarified his stance, by adding that the privacy concerned was that of the young children of North Carolina who might have to share a bathroom with a transgendered individual.
While the protection of privacy is a laudable goal, Governor McCrory’s mention of privacy in this context is disingenuous. Admittedly, privacy is a term very difficult to define, but the privacy of children who are in a bathroom stall or shielded in a urinal, while they go to the bathroom, would hardly seem encroached by another child going into the next bathroom stall—regardless of sexual identification. The rights being trampled upon by H2B are those of transgender individuals who presumably could be forced to produce a birth certificate in order to use a bathroom of their choice to ensure that it is consistent with their birth gender. The use of the right to privacy to support the type of law signed by Governor McCrory is contrary to the concept of privacy itself and privacy advocates are dismayed by the obvious distortion of how and why we should seek to protect Privacy Rights.
In a letter to North Carolina officials, the Justice Department responded to the new state law stating that House Bill 2, violated the rights of transgender people by requiring them to use the bathroom corresponding to the sex on their birth certificate. The Gay, Lesbian, and Straight Education Network said in a press release that because of H2B, transgendered people “will continue to be denied the dignity of accessing restrooms that correspond with their gender identity.” Governor McCrory needs to be honest about H2B and recognize that this is not an issue regarding the right to privacy of those using the public bathrooms, but rather a frontal assault on the rights and dignity of transgender people.