HB2, the discriminatory piece of legislation that mandated all public facilities force patrons to use the bathroom that corresponds to the sex on their birth certificate, prevents localities from passing non-discrimination ordinances more extensive than those of the state. Since the election of Governor Roy Cooper, the North Carolina legislature, tasked with repealing HB2, has been fighting, looking for ways of preserving this form of codified discrimination.
North Carolina Representative Chuck McGrady (R) of District 117 put forth the most recent proposal in the debate. His bill would allow local ordinances to create their own non-discrimination policies regarding public areas. However, this freedom would be tempered by the ability of citizens to request referenda on these ordinances- calling for a public vote over the basic rights of marginalized groups like the transgender community. Last Sunday, Governor Roy Cooper issued a statement regarding the lack of momentum on any form of repeal, chastising the GOP super-majority within both houses of the General Assembly for their inaction. Governor Cooper also expressed concerns over the McGrady proposal- writing, “it subjects the rights of the minority to a vote of the majority. It would be like putting the Civil Rights Act to a popular vote in cities in the South during the 1960s. Except today, it would come with the perils of modern campaigns.”
Before considering the obvious dangers of imperiling natural rights in the form of a public opinion poll, it is important to understand the deep divisiveness of HB2, as well as the profound urgency of its repeal. The bill was passed in a special session called by Republican lawmakers in early 2016 as a response to a Charlotte non-discrimination ordinance. The city council, in collaboration with local LGBT leaders, added protections to their city-wide non-discrimination clause that included freedom from discrimination based on sexuality and gender identity.
Accordingly, the city maintained that transgender individuals should be allowed to use the bathroom corresponding with their gender identity in all publicly-owned facilities. Swift rage broke out from the chambers of the General Assembly from state leaders like House Speaker Tim Moore and former Attorney General candidate Buck Newton. The NCGA quickly passed a retaliatory piece of legislation that did two things. First, it required that persons using public facilities within the state of North Carolina use the bathroom corresponding with the gender listed on their birth certificate. Second, it nullified all non-discrimination protections passed by cities and towns that differed from that of the state. Thus, Durham cannot, under state law, provide extra protections for its citizens, even if it deems them necessary.
Eventually, North Carolina made national news as company after company and basketball game after basketball game fled the state, refusing to do business in the face of such discriminatory and unpopular legislation. Companies like Deutsche Bank and PayPal left North Carolina on account of HB2, and artists like Bruce Springsteen and Maroon 5 refused to perform. While the economic loss associated with HB2 is sobering, HB2 violates human dignity and limits local power, regardless of the amount of money it costs the private sector. Republican legislators have defended the bathroom piece of the bill as a way to “protect women and girls” from predators. In actuality, it endangers the transgender community, especially those whose physical features conform well to their genders- if a woman is forced to walk into the men’s bathroom even though she identifies as a woman, she is likely to be the subject of violence, assault, and/or shame. The idea that allowing people to use the bathrooms of their choice will lead to more assaults is a myth and a red herring used to justify legislated discrimination. New York and California have guaranteed protection from gender discrimination for a decade, and have seen no change in assault statistics.
Additionally, HB2 allowed Republican legislators to extend the hand of government into the bathroom and prevent elected officials on local and town councils from doing their jobs. Their disregard for the democratic process allows them to limit the power of their opponents and prevent progressive legislation on the local level, even if it it is in the public interest. HB2 represents a symbolic stifling of the voice of egalitarianism and democracy within the state of North Carolina. Its repeal means not just a possible rise in national reputation, but a choice to stand on the side of justice and protect minorities from unlawful discrimination.
In essence, McGrady and other legislators tacking on provisions to a repeal is a slap in the face to transgender and gender-nonconforming North Carolinians. Attaching a referendum to a provision regarding their basic rights sends a clear message to each of them: the jury is still out on whether or not you are entitled to fundamental dignity and respect.