Be careful what you wish for in bathroom bill debate

North Carolina’s HB2 is now a year old and controversy over the law continues to rage. Unless the law is changed or repealed, the Supreme Court ultimately may decide its validity. 

A ruling striking down HB2 could directly affect the civil rights of many Americans, but not in the way you might think.

{mosads}The HB2 controversy started in Charlotte where left-wing politicians on the city council repealed an existing ordinance that specifically excepted restrooms, showers, and similar facilities from the city’s prohibition on sex discrimination. At the same time, the City Council added gender identity as a protected class under the city’s public accommodations ordinance.

Under the Charlotte ordinance, a self-identified transgender female with male anatomy would have a legal right to use the female locker room at the high school or local health club, undressing and showering next to non-transgender women.

The City Council’s action was a solution in search of a problem — the ordinance was passed to make a political statement and not to remedy any significant inequities which exist in the city. While several transgender persons told the City Council that using a bathroom opposite their gender identity makes them feel uncomfortable, there was no evidence of widespread discrimination on the basis of gender identity in the public or private sectors in Charlotte (or other parts of North Carolina, for that matter).

Before the ordinance went into effect, the North Carolina state legislature convened a special session and passed the Public Facilities Privacy and Security Act, otherwise known has HB2, that voided the ordinance and preempted similar efforts by localities in the future.

HB2 requires that multi-occupancy bathrooms, showers, locker rooms, and other changing facilities in public schools and government agencies (but not private businesses) be separate based a person’s physical anatomy. It merely codifies the basic rules of bathroom, locker room, and shower access that have long-existed in our society: If you have male genitals, you use the male bathroom; if you have female genitals, you use the female bathroom — hardly a radical idea.

HB2 also created a new statewide public accommodations law that prohibits discrimination on the basis of race, religion, color, national origin, or biological sex, but does not include gender identity. The law is nearly identical to the federal public accommodations law as well as to nondiscrimination laws in a majority of states, none of which include gender identity. 

Transgender activists, along with their media, corporate, and sports-world allies, depict HB2 as discriminatory and its supporters as bigoted and hateful. These activists are pushing hard to destroy longstanding social norms and legal rules about sex and privacy. They want to transform gender into something fluid — whatever anyone wants it to be — wholly apart from biology and genetics.

HB2 is not about targeting or hating transgender persons. It’s about respecting long-standing societal norms that protect personal bodily privacy. The reason we have different bathrooms and changing facilities is because we have different bodies, not different gender identities. HB2 protects the privacy interests that arise from our bodily differences.

Transgender activists challenging HB2 want federal courts to declare that the Constitution privileges gender identity over personal privacy in bathrooms and changing facilities. They say HB2 harms the dignity and privacy of transgender persons, but their way harms the dignity and privacy of everyone else.

Never mind if non-transgendered persons will be required to disrobe, shower, and perform personal bodily functions in the presence of those with intimate body parts different from their own.

If they don’t like it, transgender defenders say, they can either get over it or go somewhere else.  

While their transgender arguments did not succeed in federal court in North Carolina, activists hope they will win in the Fourth Circuit Court of Appeals, which is comprised mostly of “progressive” judges who declare not what the law is, but what they think the law should be.

If the Constitution forbids a state from separating its bathrooms and changing facilities based on physical anatomy, then we are in the final act of a judicial theater of the absurd where, like Humpty Dumpty’s declaration to Alice in Lewis Carroll’s “Through a Looking Glass,” the Constitution’s words mean only what federal judges say they mean, neither more nor less. 

Transgender activists further assert that federal laws prohibiting discrimination on the basis of “sex” must be interpreted instead to forbid discrimination because of “gender identity.” If courts so rule, the binary concept of men and women upon which sex discrimination laws are based will be destroyed.

Gender theorists tell us that gender identity is non-binary and fluid. It exists across a continuum — you can be bigender, pangender, agender, gender fluid, gender queer, gender nonconforming, or any number of other gender possibilities. (Just the other day, a judge in Oregon declared a person legally “genderless.”). A person’s gender identity is not fixed—it can vary depending upon the person’s current subjective impressions.

Interpreting “sex” in federal nondiscrimination laws to mean “gender identity” will lead to absurd and unsolvable legal dilemmas. Which high school locker room does the agender or pangender student use? On which team does the gender fluid or gender nonconforming student play?

When “sex” becomes “gender identity” in nondiscrimination law, three things will happen.

First, bathrooms, locker rooms, showers, and similar facilities will become unisex. No longer will private spaces be designated men-only or women-only.

Second, women’s sports will be eliminated. Transgender men already are playing on women’s sports teams. But schools can’t create separate teams for 50 different gender identities, so there will be one team for everyone.

Third, women will lose legal protections in the workplace and elsewhere. How can the Equal Pay Act be enforced, for example, when men can be women and women can be men, when they can be both men and women at the same time, or when they can be neither men nor women? Women should think twice about sacrificing their hard-earned civil rights on the altar of transgenderism.   

The dispute over HB2 is not just about bathrooms. It’s about the erasure of legal categories for men and women in our law and culture, and it’s fraught with dangerous consequences for our personal privacy, our civil rights, our children, and our families. 

Be careful what you ask for. 

E. Gregory Wallace is a constitutional law professor at Campbell University School of Law in Raleigh, North Carolina. The views expressed are his own. You can follow Campbell Law at @CampbellLawNow.

The views expressed by contributors are their own and are not the views of The Hill.