POV: North Carolina’s New Transgender Law

This and similar laws offer “a license to discriminate”

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April 22, 2016
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The Supreme Court’s decision that the constitution grants Americans the right to marry who they choose has produced the expected backlash. The advent of same-sex marriage has mobilized state legislators across the country to introduce a number of bills that would restrict the rights of LGBT citizens, all in the name of protecting religious freedom.

One particularly broad example of such a law comes from North Carolina. In March, in a span of just 12 hours, the North Carolina General Assembly and Senate approved, and Governor Pat McCrory signed, a bill that prohibits local communities from enacting ordinances that would ban discrimination based on sexual orientation or gender identity. The impetus for the bill was a measure enacted by the city of Charlotte that prohibited discrimination against gay, lesbian, bisexual, and transgender citizens.

Besides banning local antidiscrimination ordinances, the bill requires all government-controlled facilities, including schools and universities, to provide single-sex, multiple occupancy bathrooms and locker rooms, and requires individuals to use the bathroom that corresponds to their gender at birth. In enacting the bill, North Carolina lawmakers focused on the bathroom. Like many critics of transgender rights, legislators raised the potential problem of men dressing as women in order to enter women’s restrooms and assault women. Really.

North Carolina’s law is, in many ways, a throwback to Colorado’s Amendment 2, approved by Colorado voters in the early 1990s. Like the North Carolina law, Colorado’s Amendment 2 overturned antidiscrimination laws in Denver, Boulder, and other cities, and amended the state’s constitution to provide that neither local governments nor the state of Colorado could enact antidiscrimination laws protecting gay, lesbian, or bisexual citizens. In Romer v. Evans, the Supreme Court declared Amendment 2 unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. The court found that the purpose behind Amendment 2 was to harm LGBT citizens. This was impermissible, according to the court.

Unlike Colorado’s Amendment 2, the North Carolina law does not explicitly forbid local governments from passing antidiscrimination provisions protecting LGBT citizens. Instead, the law prohibits discrimination based on a number of characteristics, including gender and race, but leaves out sexual orientation and gender identity. The law then states that local governments cannot enact their own antidiscrimination measures, thus blocking any measures that would protect LGBT citizens. For that reason, despite the difference in wording, the North Carolina law has the same effect as Colorado’s Amendment 2 and appears to be unconstitutional for the same reason.

More recently, Mississippi’s governor has signed into law a “Religious Freedom” bill that would allow people with religious objections to deny wedding services to same-sex couples. The bill would also allow employers to cite religion in determining workplace policies, including dress codes, grooming, and bathroom and locker access.

While the North Carolina law is unique in its breadth, bills similar to Mississippi’s have been introduced in at least 28 states. Religious freedom is often the rallying cry behind the passage of such bills, but looking into civil rights movements of the past illustrates that religion has often been used to justify discrimination. In South Africa, the Dutch Reformed Church was a vigorous supporter of apartheid. Here in the United States, the Southern Baptist Church supported slavery and segregation for over a century. The Mormon Church did not ordain black men as priests until 1978. These groups were able to cite biblical passages to support their stance, just as opponents of same-sex marriage do today. Yet, claims of religious freedom have never been found to justify racial discrimination.

The First Amendment protects an individual’s “free exercise” of religion. For that reason, a court could not order a priest to perform a same-sex wedding. Baking a wedding cake or preparing a wedding bouquet are not religious activities, however. In fact, at least one court has found that, in the face of an antidiscrimination law protecting LGBT citizens, a photographer cannot claim a First Amendment right to refuse to photograph a same-sex wedding. The recently enacted Mississippi law purports to give a photographer that right. Can Mississippi pass a law giving bakers, florists, photographers, and others a right to refuse to provide these services? Absent a federal or state civil rights statute protecting LGBT citizens, the answer could be yes.

Although these new laws are disturbing to those of us who support equal rights for all Americans, these laws seem to be the last gasp of a failed mission. In fact, Georgia’s legislature recently passed a law similar to Mississippi’s, only to have the law vetoed by the governor. Responding to threats from the business community to take their business elsewhere, Governor Nathan Deal stated, “I do not think we have to discriminate against anyone to protect the faith-based community in Georgia…” In all likelihood, Americans will begin to see laws like Mississippi’s for what they really are: a license to discriminate hiding behind a very selective reading of the bible.

Robert Volk (LAW’78), a School of Law associate professor of legal writing and director of the Legal Writing and Appellate Advocacy Programs, can be reached at rvolk@bu.edu.

“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow at barlowr@bu.edu. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.

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POV: North Carolina’s New Transgender Law

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There are 17 comments on POV: North Carolina’s New Transgender Law

  1. What you say makes perfect sense and I totally appreciate your need to say it.

    On the other hand, I’m mystified by the fact that *everyone* involved in this debate is compelled to use the words “sex”, “bathroom”, and “religion” so many times in the space of so few words.

    Don’t worry, I’ve seen worse. It’s just sad that we can’t turn this into a comedy.

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  2. Professor, while I respect you opinion, you seem set on pitting religious practice against a hospitable, accommodating society that embraces all. One of the most famous alumni of this institution, the Reverend Doctor Martin Luther King, leveraged his ministry to end segregation in this country. Catholic Charities welcome immigrants and refugees who suffer new form of discrimination, violence and injustice. Back Bay Mobile Soup Kitchen, a religious organization, works in this University’s backyard to serve the forgotten hungry. For your few anecdotes of less than charitable religious expression, billions of people express their deeply held beliefs to serve the most vulnerable.

    Personally, I think the United States should welcome everyone, including members of the LGBT community, in all 50 states. I know we can do this while respecting the first right afforded each person by our Constitution, the right of conscience and specifically, the “free exercise of religion.” What does this mean? To address your examples, no one need force a baker or photographer to participate in a ceremony that violates their conscience; instead, they can contract someone who shares their belief around marriage. Candidly this solution show more respect for all parties and lends to a better experience for all.

    With regard to bathrooms, a central concern for public safety, I hope we can find an equitable solution for members of the transgender community and those who identify with their biological sex. I don’t know what works best; however, I hope everyone on both sides of the issue dialogues in a more respectful way. Booing the Governor of the Commonwealth off stage and crafting pieces attacking religious expression will not advance the conversation.

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    1. Religion has consistently been used both to support AND oppose discrimination and oppression against all kinds of groups and at all levels of society. At our current point in history, it is being used very heavily to oppress LGBT people around the world, and while there are certainly examples of religious groups supporting the LGBT community, they are vastly outweighed by those who choose to oppress.

      “To address your examples, no one need force a baker or photographer to participate in a ceremony that violates their conscience; instead, they can contract someone who shares their belief around marriage.”

      What if it violates a baker’s or photographer’s conscience to participate in an inter-racial wedding (“God made the races separate for a reason”), or even just a wedding between two people of the same race who that baker or photographer considers sub-human (Curse of Ham) and therefore not worthy of the institution of marriage? Do you really want to allow racial discrimination if justified by religious beliefs? How far are you willing to take this? Do you want to go back to the “Whites Only” signs in shop windows, or do you have a coherent reason why we should allow “Straights Only” signs and stop it after that?

      “Candidly this solution show more respect for all parties and lends to a better experience for all.”

      Candidly no, it shows NO respect for same-sex couples and ONLY shows more respect for bigots. Bigotry merits no respect.

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      1. “What if it violates a baker’s or photographer’s conscience to participate in an inter-racial wedding (“God made the races separate for a reason”), or even just a wedding between two people of the same race who that baker or photographer considers sub-human (Curse of Ham) and therefore not worthy of the institution of marriage? Do you really want to allow racial discrimination if justified by religious beliefs? How far are you willing to take this? Do you want to go back to the “Whites Only” signs in shop windows, or do you have a coherent reason why we should allow “Straights Only” signs and stop it after that?”

        Holy straw man argument batman. Be careful throwing the word bigot around. It actually means something and it is not just a buzz word for social justice warriors.

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        1. These bigots in NC & elsewhere should stop obsessing over other peoples’ genitals. Try uni-sex bathrooms: male when a guys uses, female when a woman does. Id that so hard?

          Of course “bigot” means something, Chris. It means that the targets are grossly biased & prejudiced against certain people for no good reason, & willing to harm them on that basis. People are going to “throw it around” even if you can’t catch.

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      1. Hi Dan,
        Disagreeing with someone’s choice does not equate to bigotry. While one does not choose who they’re attracted to, they do choose how to respond to that attraction. Members of the LGBT community choose, because of their attraction, to enter a civil union or marriage (depending on the jurisdiction) with another person. If someone subscribes to a moral framework where marriage is exclusively the bond between one man and one woman forever, they may conscientiously object to the decision of two men or two women. This conscientious objection should safeguard them from participating in that program.

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        1. But can you tell me how this is any different from a photographer or baker who believes the races should be kept separate and distinct, and uses that to justify rejecting a mixed-race couple?

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  4. Robert,
    While I agree with you completely about protecting the rights of gay and lesbian couples to obtain wedding services, such as a cake, and to be treated with dignity and humanity, I think you’ve been really dismissive and insensitive about the issue of women’s personal safety in public and facility bathrooms. This was your comment on the issue:

    “Like many critics of transgender rights, legislators raised the potential problem of men dressing as women in order to enter women’s restrooms and assault women. Really.”

    Wow. What a response. As someone who, I’m assuming, has lived as a man all or most of your life, do you really have the right to be this flippant about the VALID concerns of women with regards to sexual assault, harassment, and privacy?

    I’ll only speak for myself here: as a survivor of sexual abuse, I cannot even describe to you the anxiety and fear I experience being in public around men. Whether it’s riding transit, walking on the street, or roaming a shopping mall, being around men, especially groups of men, can range from making me guarded to downright terrifying me.

    So imagine the relief I feel when I walk into a women’s bathroom (the ONLY public space in which only females are allowed – bare in mind). Now imagine how it would feel if you seek the refuge of a women’s-only space to find there are males in there. I am sure that a huge majority of transwomen who are great people who would never harm anyone in a bathroom or other public space. So this isn’t coming from a place where I want to oppress transpeople. But, you see, it’s just the presence of a male-born person, hearing a male voice, knowing how vulnerable you are (what if I was ALONE in a bathroom with a male person?), that is enough concern for my emotional well-being, let alone physical safety.

    In taking up such a hot button issue, have you even considered the perspectives of some feminists or women who are genuinely concerned about the safety breach involved in making women’s bathrooms open to everyone? Religious right-wingers and liberals in favor of “all-gender” bathrooms are not the only sides in this debate.

    I am not saying that every woman out there feels the way I do, but I sure as heck have a valid concern for my safety – what makes you think many male-born men out there won’t take advantage of “all-gender” public bathrooms to target and assault women? We live in a culture that trivializes, even condones, rape and men’s entitlement to women’s bodies. Having “all-gender” bathrooms to replace women’s bathrooms reinforces the idea that men are entitled to women’s spaces and bodies – a recipe for disaster.

    If you are asking people to look at the Carolina law’s wider implications, then you must also look at the wider cultural context of sexism and violence against women – everyone’s personal safety, including those of female-born women and transwomen, is priority.

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    1. You say “everyone’s personal safety, including those of female-born women and transwomen, is priority.” Yet you seem blind to the fact that continuing to force transwomen to use the men’s bathroom is much more dangerous to them than they are to you.

      Transpeople are at higher risk for sexual assault/abuse, suicide, and hate-based murder than the average person. In general, all of society feels as entitled to a transperson’s body as you say men feel to women’s bodies.

      Forcing a transperson to walk into the restroom corresponding to the gender they are not presenting as can easily open them up to violence. It also makes them feel that, once again, society has made them second class citizens.

      To say that, because you might be triggered by the male past of a transwoman, they should be denied rights is dehumanizing. You have no right to give that as justification, the same way that no one should try to deny rights based on race. You invoked feminism, and that’s the mainstream feminist stance.

      In the history of (largely unspoken) rules allowing people to use the bathroom they feel safe in, no transwomen has assaulted anyone. And all states with these laws report no more problems than they’d have without the law. This idea of increased assault risk is a fantasy created to stir up fear.

      Indeed, if these bathroom bills have their way, you’ll now have to share the bathroom with men for the first time ever. A man with a full beard and everything could walk into the restroom with you, and you’d never know he wasn’t born male.

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      1. If you actually bothered reading my comment, you’d see that I wasn’t saying transwomen are a threat. I’m saying men PRETENDING to be transwomen are a real issue.

        I’m not using my triggering as an “excuse.” It is a public health issue to force women to share bathrooms with males because males historically and continually pose a serious threat to their safety. How can you say that’s not important?

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      2. You just said, too, that forcing transwomen to use men’s bathrooms is a safety issue. So your solution is to FORCE female-born women to share their bathrooms with men. Do you understand how illogical, ridiculous and sexist this is?

        I have a solution in which women don’t have to be martyrs for some backward, misogynistic logic: Make three bathrooms – one for men, one for women, and one that’s all-gender. There, no men pretending to be transwomen raping or attacking female-born or transwomen.

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  5. Professor Volk should know better than to call the NC law a license to discriminate and it displays both anti-religious bigotry with baseless reasoning. A law professor should understand that businesses are private activities, and are protected by the right of free association, yet Volk treats them as “public accommodations,” as homosexual activists did with the Boy Scouts for decades, and he should know this is flat-out illegal. Any business can discriminate for any reason, and as a short guy, frankly, I’m glad when a bar wisely excludes a burly and cranky guy from service. Selling cakes and photos are issues worlds apart from the housing anti-discrimination laws which, if he bothered, Volk would have to cite as the precedent for abridging the free association rights of home sellers.

    “L” is totally right about bathrooms. Women’s bathrooms are there to provide protection for women from men. Period. Without these laws, predatory heterosexual men were already accosting women in rest rooms – I’ve heard from women throughout my family about this. These laws have already resulted in assaults and invasions, like the man videoing a young girl in a women’s room stall – even the man who stripped completely naked.

    At University, people should engage others’ opinions with reason, not shut them down with pre-emptive insults.

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    1. As a matter of law, business are in fact not allowed to discriminate for “any reason.” True though it may be that you cannot compel private actors under regular circumstances, I would direct you to a long line of Supreme Court precedent on this issue. Private business can and ARE compelled not to discriminate on the basis of race, for example. See Heart of Atlanta Motel, Inc. v. United States, Katzenbach v. McClury, The Civil Rights Act of 1964. No one has an absolute right to discriminate without at least a rational basis for doing so. Animus and fear are not rational bases. See Romer v. Evans.

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