Last Wednesday, the North Carolina General Assembly convened an emergency session that cost the taxpayers of that state forty thousand dollars. The reason? To pass HB 2, officially known as the Public Facility Privacy and Security Act, or the “Charlotte bathroom bill.”
What is HB 2? And why should we care about it? This piece gives a brief overview of HB 2, particularly as it pertains to transgender people accessing bathrooms.
What is HB 2?
HB 2 was written in response to an ordinance passed in the city of Charlotte that banned discrimination directed at LGBT people and included provisions that allowed people who are transgender to use bathrooms that align with their gender identification. In an effort to stall these protections for LGBT people in Charlotte, the North Carolina General Assembly introduced and ultimately passed HB 2 to establish a new statewide definition of classes of people who are protected from discrimination based on race, religion, color, national origin, age, handicap, or biological sex as on a person’s birth certificate.
By specifying non-discrimination based on “biological sex as on a person’s birth certificate,” as well as the complete erasure of lesbian, gay, and bisexual people as classes of people who are protected from discrimination, North Carolina’s HB 2 nullifies anti-discrimination ordinances like the one recently passed in Charlotte as well as other similar local ordinances in the major cities of North Carolina, including Raleigh, Durham, and Chapel Hill. The elimination of these anti-discrimination protections for lesbian, gay, bisexual, and transgender people has far-reaching implications for housing, employment, access to healthcare, and safety.
Of particular focus has been how HB 2 makes it illegal for anybody to use a bathroom that does not correspond to the sex listed on their birth certificates. In other words, HB 2 creates the conditions for a transgender man or woman to be subject to police scrutiny and legal action just for using the bathroom.
Safety, for whom?
The claim that bathrooms ought to be segregated by sex – i.e., based on biology – rests on two assumptions. The first is that bathrooms are an exceptional public space where safety can be secured. The second is that men perpetrate sexual assaults because they cannot exercise control. When taken together to inform legislation like HB 2, as well as the campaign against the Houston Equal Rights Ordinance, these assumptions naturalize sexual assault as something that occurs at random and in the public sphere. This not only obscures the fact that most sexual assaults occur in the context of intimate partner violence, but also manufactures justification for government intervention.
HB 2 demonstrates that this government intervention in bathroom politics and access is often mobilized through the scapegoating of transgender women, who are cast as perpetrators of sexual assault based on the assumption that because they are chromosomally male, they are naturally perpetrators of sexual violence. This construction stigmatizes transgender women and completely erases transgender men from public discourse.
In addition to making leaps in logic that have been subject to quite a bit of satirical pushback, such as here and here, these assumptions also fail to withstand scrutiny when they are held up to empirical evidence. First, as ACLU staff attorney Chase Strangio points out, there has never been a case in which somebody has exploited non-discrimination ordinances for the purposes of assault in a bathroom. Second, and perhaps most importantly, it is transgender men and women themselves who are actually subject to disproportionately more assault, violence, and threats when using public restrooms that correspond to their gender identities. Legal scholar Dean Spade explains that these levels of assault and violence are many times greater for transgender people of color, transgender people who are poor or homeless, and people who are gender non-conforming.
Health concerns and access to space
Concerns over being harassed or faced with legal action likely means that transgender people in North Carolina will simply do what they have always done: choose to not use restrooms, with consequences for their personal health. In 2008, the Williams Institute at the University of California Los Angeles conducted a survey in which 54% of respondents reported major health problems resulting from the fear of using public restrooms, even those at their places of employment. Enduring health problems for transgender people who avoid using the bathroom regularly include: dehydration, urinary tract infections, kidney infections, and other kidney related health issues.
Legislation like HB 2, which on the surface limits access to rest rooms, also limits access to education. The New York Civil Liberties Union reports that over half of transgender-identified youth in New York City Schools drop out of school because of bullying and unsafe bathroom provisions. Legislation such as HB 2, which would criminalize transgender students accessing bathrooms in public schools, consequently maintains and reinforces the school-to-prison pipeline, particularly for students of color who identify as transgender or gender non-conforming.
Issues arise in employment as well, specifically as transgender people are refused job opportunities, fired from jobs, or limited in access to restrooms at their work sites. Finally, laws like these mean that transgender people will have limited access to public space, particularly at parks and in transportation hubs, where police and other authorities exercise more scrutiny in the name of safety and security. For people who are undocumented and transgender, using a rest room can create conditions for detention and deportation.
Many speculate that legislation like HB 2 is being used to drive up voter turn out during an election year. It is important to note, however, that whether or not HB 2 is an instance of politicking by the General Assembly and Governor, voter turnout in North Carolina will likely be depressed because 2016 is also the first year that photo identification will be required at the polls there -- a requirement that limits voter turnout for students, people of color, and people living in poverty or homelessness.
I have intentionally painted a dismal picture of HB 2. On a more hopeful note, however, it is heartening to see the wide public outcry against HB 2. Activists, politicians, and business, for example, have mobilized to urge the repeal of HB 2. The ACLU has also filed a lawsuit in response to HB 2, which North Carolina Attorney General Roy Cooper has announced he will not defend in court. By challenging the Constitutionality of HB 2, this lawsuit aims to make legislation like HB 2 less likely in the future.
Finally, it is important to note that the only feasible way to ensure safety for all people using restrooms is to legislate for and provide single-access restrooms. Washington, DC, Philadelphia, Seattle, and West Hollywood have all passed such legislation with little public outcry and much success.
If you or anybody you know has been subject to police scrutiny or legal action for using a rest room or locker room, the Silvia Rivera Law Project has resources to help. There are online resources as well, including the REFUGE app, which uses crowd sourcing to identify public restrooms that are safe for transgender people. Finally, if you are responsible for rest rooms at your business or place of employment, please consider using alternate signage indicating all gender access, such as these.