By Gwendolyn Ann Smith
In a special session, the North Carolina state Legislature pushed through House Bill 2, delivering it to Gov. Pat McCrory in roughly 12 hours. The governor signed the bill nearly as soon as it could hit his desk, wasting no time to enact what must have been a vital piece of legislation to be enacted this quickly.
The bill, titled the “Public Facilities Privacy & Security act,” is on its surface a reaction to the passage of anti-discrimination protections passed a month ago in Charlotte, North Carolina. That ordinance added citywide protections based on both sexual orientation and gender identity.
“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,” said McCrory in a statement released shortly after the passage of House Bill 2. “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.”
The bill goes much further, however, than simply nullifying Charlotte’s anti-discrimination protections: it removes any protections from local hands across the state, requiring localities to rely on state protections that do not cover LGBT individuals. It also repeals protections for other groups in other municipalities, such as veterans and others. The only explicitly covered classes in North Carolina are race, religion, color, national origin, biological sex, and in some cases, age and disability.
As expected, House Bill 2 prohibits the use of restrooms at schools and public institutions across the state by anyone whose gender does not match their birth certificate. It does not clarify how one would challenge a person in a restroom, or how that same person would respond. One has to presume that this “privacy” act does not extend to the privacy of transgender residents of North Carolina, who are now expected to answer to any challenge to their gender. Or, of course, people who are not transgender but who may still be challenged because someone else decides they are not masculine or feminine enough for a particular set of facilities.
House Bill 2 also removed the ability of people to bring a civil suit over discrimination, even if the discrimination actually does fall within the categories explicitly banned under the bill. Oh, and for whatever reason, the bill also prohibits “all local ordinances, regulations or resolutions imposing any requirements on employers pertaining to compensation of employees.” This is broad reaching, affecting minimum wage fights, leave, benefits and even rights involving minors in the workplace.
To push this bill through, the state spent approximately $42,000 to hold a special one-day session. Adding insult to injury, State Sen. Tom Apodaca is pressing to have Charlotte cover the bill for the special session — perhaps by taking the cost out of appropriations or other state funds the city would be expecting from the state.
But the final tally on the passage of House Bill 2 does not end with the cost of this one-day session.
Institutions across the state have spoken out on the bill, with statements from Bank of America, Lowe’s, Google, PayPal, Apple, American Airlines and many other companies. The NCAA is raising questions about their desire to host events in the state and the NBA is suggesting a move of the 2017 All-Star Game. San Francisco Mayor Ed Lee has also opted to ban city staff from traveling to North Carolina at city expense.
The bad press and backlash from the aforementioned institutions prompted the governor to present an overly-cheery assessment dressed up as a “Myths vs. Facts” release. The release does an amazing job of answering only the questions it presents, in as couched a language as it can.
By challenging the ability of trans students statewide to use appropriate gender changing facilities and restrooms, Gov. McCrory puts an estimated $4.2 billion in federal funding by going against Title IX protections for transgender students. McCrory’s office is claiming they will not face this in the aforementioned “Myths vs. Facts” release, stating that House Bill 2 will not affect federal funding “according to a federal court which has looked at a similar issue.”
The Department of Justice affirmed its position on Title IX protections for transgender students last June in a case in Virginia, seemingly in opposition to McCrory’s views.
“Prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX,” stated the DOJ in that case. “There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination.”
While the state has tried to limit who can sue, this will not stop legal challenges. The ACLU of North Carolina and Equality North Carolina have filed the first in U.S. District Court. This will be a further financial drain on the state.
The cost of this bill, in the end, is not one of currency, and it is not a cost that will be borne by North Carolina, let along taken out of funds intended for the city of Charlotte.
As I said above, in some attempt to provide “privacy and safety” for non-transgender people, based on a “bathroom predator” myth that has been disproven at every turn, trans people like me are not provided safety nor privacy.
The cost will come out of transgender and gender non-conforming individuals in North Carolina, now forced into further second-class citizen status and declined even the most basic right to use a restroom appropriate to their presentation — and ultimately, I fear the cost will be measured in lives lost, not dollars spent.