Whose Bathroom is it, Anyway? Redux

What we in North Carolina have witnessed over the past few days is, in many ways, a nearly perfect demonstration of how we would like our governments to work: neither side emerged fully satisfied, but both sides could still claim some degree of victory. The most despised element of the original S.L. 2016-3, the requirement that transgendered individuals use public restrooms and other facilities based upon their gender designation at birth, has been removed. This is certain to assuage many a centralist and those only familiar with the “bathroom” portion of the “Bathroom Bill”. This means that, once again, transgendered Americans can live and work in North Carolina and use facilities based upon their gender identity and not ones chosen for them by cisgendered members of the North Carolina General Assembly. This is, make no mistake, a positive development and makes significant strides towards returning this state to a more respectable position in the country. However, as informed opponents of the original HB2 have tried to point out since its inception just over a year ago, the legislation goes much further than simply regulating bathroom access for transgendered citizens. The other major component of the law aimed to consolidate power in the General Assembly’s hands by prohibiting cities and towns from enacting their own rules and regulations preventing LGBT+ discrimination. This, let us not forget, was the catalyst for the GOP machine in Raleigh to so rapidly write, approve and enact HB2 in March of 2016. There had been no incident that required such a sweeping “public safety” response from the legislature, only the approval of a seemingly innocuous and reasonable ordinance in Charlotte. Still, this localized step towards undoing LGBT+ discrimination was viewed from the state capital as a challenge to the Assembly’s authority and had to be quashed.

From the beginning of this unnecessary saga, the GOP supporters of the law have tried to disguise its raison dêtre by insisting it was meant to protect women and girls from sexual deviants pretending to be trans as a means to get at their victims. The blatant absurdity of this claim has been brought up countless times in the past year: no such case had ever been reported in any state, whether bathroom protections for transgendered citizens were on the books or not. The only examples brought to the law’s defense were cases of obvious sexual harassment and assault committed by cisgender, heterosexual males that were prosecuted under existing statutes. The hollowness of supporters’ arguments, however, were immaterial as the apparent true purpose of this law was never to defend the purity of the fairer sex, but rather to use that as a pretext to strip power from municipal authorities. This can be clearly demonstrated in the language of this week’s HB 142, the “reset” bill. Notice how the GOP leadership in the General Assembly was willing to remove the gender requirements (i.e. the “public safety” element) for restroom access in exchange for preserving State control over those same restrooms until December of 2020. This “reset bill” mostly fails to reverse the siphoning off of municipal authority and operates less as a true repeal and more like a modification: the overall sentiment and goal of the original law remain intact even though the most publicly decried and financially vulnerable part has been excised. The inclusion of an expiration date for S.L. 2016-3’s remaining articles is also a positive move, but let us not fool ourselves — this law is going to have a fairly long shelf life. We can also rest assured the Republican majority in the General Assembly will do everything possible to preserve that majority into the next decade. This will surely allow them to revisit the statute and either renew its stain on the state’s reputation by further delaying a total repeal, or reverse course and reinstate the entire law, bathrooms and all.

Still, some credit must be given to Governor Roy Cooper for coming away from this debate with some form of repeal, however small. Perhaps, as the governor said, the “compromise wasn’t a perfect deal”. Perhaps it is little more than a selfish dodge on the part of Tim Moore and Phil Berger to avoid the repercussions of a long-term NCAA boycott. Perhaps demanding a full and unconditional repeal would have done more harm than good. It is impossible to know what could have been and no one knows what might be. What we do know is that critical steps have been taken and, with some luck and a great deal of hard work, North Carolinians may yet prove they really are forward thinking and exceptional people in spite of their representatives’ misguided decisions.


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