Here’s why he did it:
… which kind of reminds me of when Edith Bunker of “All in The Family” couldn’t understand how a man could be in love with another man, and therefore didn’t understand the concept of gay rights. The ordinance only defies common sense if you are blind to the problem it seeks to remedy.
Speaker Jim Moore also defended the law, saying:
“One of the biggest issues was about privacy. . . The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”
The final bill is attached below the fold.
Charlotte Mayor Jennifer Roberts, a Democrat, released a statement saying she was appalled by the bill’s passage.
“This legislation is literally the most anti-LGBT legislation in the country,” she said Wednesday.
So how did we get here?
North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.
Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city’s existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.
And so on February 22, Charlotte came forward with an ordinance which did just that:
The changes mean businesses in Charlotte can’t discriminate against gay, lesbian or transgender customers, in addition to long-standing protections based on race, age, religion and gender. The ordinance applies to places of public accommodation, such as bars, restaurants and stores. It also applies to taxis.
The most controversial part of the ordinance would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify.
And that’s when state lawmakers jumped into action, quickly proposing the new state law which was signed by the governor yesterday.
Here’s what the state’s law does:
- The statute overturns and bans local laws (including Charlotte’s) that don’t conform to the state’s nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn’t ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
- It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they’re forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it’s not required.
The governor and bill sponsors want the focus to be on the bathroom issue — it is something everyone can relate to — but that will involve a lot of silly fearmongering that has little basis in reality. Sexual predators can exist regardless of the sexual orientation of the predator OR victim. You don’t reduce incidents of sexual predators simply by discriminating against people of a certain sexual orientation. The one has nothing to do with the other. And in fact, we know from experience in places which permit transgender accommodation that the fears of heightened sexual assault or invasion of privacy are unfounded.
Cambridge, Mass, for instance:
Back in 1984 Cambridge enacted an ordinance that established the Human Rights Commission. The purpose of the ordinance was to protect the human rights of all citizens of the City. In 1997 this ordinance was amended to specifically include gender identity and expression. Much like the Transgender Equal Rights Bill proposal, the City of Cambridge sought to offer protection to transgender individuals from being harassed, fired from a job, denied access to a public place, or denied or evicted from housing. Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.
No incidents in almost 20 years.
But the bathroom thing is partly a diversion. What is at stake here is LGBT rights and non-discrimination laws in a broader sense. This is the new battlefront after the gay marriage victories.
Already, two states have passed laws that preempt local non-discrimination provisions. In 2011, Tennessee passed such a law, and Arkansas passed one in 2015—both in responses to cities adopting or considering ordinances.
North Carolina’s law us like the Tennessee and Arkansas law. This is the first time that a law has been passed at the state level which mandates that students use the bathroom corresponding to their “biological sex” or some similar phrase. In February, South Dakota lawmakers passed a similar bill, but Republican Governor Dennis Daugaard vetoed it, saying the law did not answer any pressing need and that local authorities were better-equipped to handle the issue than state lawmakers.
The student-restroom laws in North Carolina and elsewhere raise other questions, most notably whether schools fall afoul of federal Title IX regulation and thus endanger federal funding. It would be ironic if the North Carolina’s attempt to preempt Charlotte’s ordinances was itself preempted by federal law, but that’s certainly a highly possible outcome.
The other problem with the new state law is the notion that municipalities must conform to the state’s nondiscrimination laws. While that is generally true, “conformity to nondiscrimination laws” has never meant that municipalities had to be as discriminatory as the state. Rather, it has always meant that municipalities must be at least as NONdiscriminatory as the state. Put another way, the purpose of non-discrimination laws is, to stop discrimination. If a municipality wants to do better than the state at stopping discriminating, it has always been free to do that. That’t the way it has been in every state in the country. Charlotte WAS conforming to North Carolina’s non-discrimination laws. AND it added a few non-discrimination laws of its own.
But the rationale of North Carolina’s new state law turns the whole idea of non-discrimination on its head.
Another rationale for the new law is the specious argument that state laws regarding non-discrimination should be consistent throughout the state — that this will somehow help intra-state commerce. Sounds good and legal and rational…. until you actually think about it. How is intrastate commerce affected at all if taxis can ignore LGBTQ people in Raleigh, but can’t in Charlotte? Intrastate commerce isn’t impacted at all. Nor is it affected if the bathroom rules are different in different municipalities.
And if Charlotte wants to prevent businesses from engaging in wage discrimination against LGBTQ workers — well, that doesn’t impact intrastate commerce either. Yes, it makes Charlotte a more appealing place to work than Raleigh if you are a member of the LGBTQ community (or, you know, the human race), but that’s Raleigh’s problem. It doesn’t affect THE STATE or intrastate commerce. So this “conformity of nondiscrimination laws throughout the state” is just a bullshit rationale.
And so the next fight begins. Personally, I am not worried about the final outcome. I’ve been around long enough to see the arc of justice, and which way it bends. In the 1970s and 1980s, when transgender discrimination issues started poking up, they almost universally failed. Not so anymore. Courts are beginning to recognize that that a person could bring a claim under Title VII’s ban on sex discrimination because an employer views an employee’s sexual orientation as “not consistent with … acceptable gender roles.” The U.S. Department of Labor has acknowledged the ruling in Macy v Holder — so now, if you are a business that wants a government contract, fat chance of getting that contract if you discriminate on the basis of gender identity or transgender status. [UPDATE: I’m going to list some federal court decisions which support coverage for transgender Individuals as sex discrimination]
But it is just frustrating to have to continually have these battles for civil rights and, indeed, common decency. I just wish the haters would get tired of losing and give it up already.
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