If you know me, you probably are not at all surprised that the point of this blog post is my opposition to North Carolina’s HB2. So, my intention in writing this is not to surprise anyone, but rather to hopefully express some of what I see as being the biggest criticisms of the law. If you support the law, I invite you to consider some of the points that follow; I understand I may not change your mind, but I would appreciate you hearing me out (and by the way, kudos to you for reading this and being open to learning about views different than yours). If you, like me, oppose the law and want to see it repealed, I hope I might offer information and perspective useful to you in your own dialogues about why you disagree with the law.
First, I challenge you to read the law. You can find it online here. There are lots of complexities to the law, and you can see that it is more than just a bathroom bill. There is plenty contained here that I believe is worthy of criticism that has nothing to do with the LGBT community and that adversely affects most everyone, such as the state significantly limiting the power of local governments. But I digress; a blog post about all my beef with all aspects of HB2 would be meatier than all than a Chicago steakhouse. I’m going to focus my criticism on Part I (Single-sex multiple occupancy bathroom and changing facilities) and Part III (Protection of rights in employment and public accommodations). Specifically, I’m going to suggest transgender people should be able to use the restroom that matches their gender identity, and that it is important to allow for protection of Lesbian, Gay, Bisexual, and Transgender (LGBT) people (among others). Even in limiting myself in this way, I recognize that this blog post is still gargantuan, and I apologize in advance if you read all the way through and then want those minutes of your life back – if you really think I’ve wasted your time, I’ll gladly buy you a drink. But, I’m not going to let my fear that I’ve gotten long-winded here stop me from posting this. It’s too important to me not to.
BATHROOMS AND TRANSGENDER PEOPLE
First, the bathrooms. What does the law say? It says in all state buildings (which would include all buildings of state and local government, as well as state-run universities & colleges, and K-12 schools too), in all bathrooms and locker rooms/changing facilities that are not single occupancy, people must use the room that matches the sex on their birth certificate. Defenders of this law suggest it is common sense because males are males and females are females, and we need to protect women and children from being forced to share these intimate spaces with men and/or sexual predators. They also suggest doing otherwise and making it legal (or even just not explicitly illegal) for transgender people to use the restroom matching their gender identity prioritizes the feelings of transgender people and bullies everyone else with no respect for their feelings.
There is a lot to unpack here, and I’ve already warned you I’m not famous for my brevity, so let me own who I am and at least try to be thorough here. First, common sense… How does the saying go? It isn’t so common. I’m not exactly sure what common sense is supposed to mean or why it is something we should be appealing to in our laws. You can go look up the Webster’s definition of common sense, but I’m more interested in how the term functions. And functionally, the term usually means that what is common sense is what makes sense to the person saying it and/or is a view shared by many other people, especially within the person’s social circles. My main problem with this is that common sense is held out as some sort of almost immutable, tautological source of evidence – most people believe this, so it’s common sense, and it’s common sense because most people believe this. However, I think this starts to break down when we take a larger perspective. It used to be common sense that the Earth was flat, that the sun revolved around the Earth, that slavery was an acceptable practice, or that women had no right to vote. What is common sense, i.e., what is believed by a majority of people, is subject to change based on changes in evidence and culture across time. Using this logic, same-sex marriage is now common sense according to national polls like Pew and Gallup, but I’m guessing that this may not be convincing evidence to people who once appealed to common sense as a reason against same-sex marriage. Perhaps appeals to common sense are an empty appeal to some meaningless authority when one lacks more credible reasoning and evidence for one’s position.
“Now, hold the phone just one second, Baron Liberal Von Ivory Tower,” you may be saying (and if you are, may I just say, nice zinger). “Sure, sure, I see your point about common sense, but c’mon, we’re talking about basic biology here – males and females.” This is where I think a few definitions may be important, so please bear with me (Professor Pointyhead McBleedingheart beseeches you on behalf of the Baron). Sex refers to a person’s biological, genotypical, phenotypical classification as male or female, based on things like having testes and a penis or ovaries and a vagina, having XX chromosomes or XY chromosomes. Gender is the socially constructed set of roles, behaviors, activities, and attributes a given culture or society assigns to a sex. The important thing to note here is that gender is not some static thing that is the same across cultures and times – an easy example is that while men generally do not greet each other with a kiss on the cheek in 2016 USA, this is/has been a common behavior in other places and times. Gender identity is an individual’s perception of their own gender. The term gender is used here instead of sex because whether someone has certain genitalia or chromosomes is not the question, but their experience of being male or female is. Also, unlike sex, gender identity is not present from birth; rather, developmental scientists would suggest it develops often in early childhood. When an individual’s gender identity matches their sex, that is called cisgender, and when an individual’s gender identity does not match their sex, that can be called transgender. Note that transgender is not the same thing as other behaviors that often get lumped in or confused with it (such as cross-dressing or transvestic fetishism, in which a person enjoys dressing as the opposite gender but still identifies as their gender assigned at birth, or drag, in which a person presents as the opposite gender for entertainment purposes without any reference to what gender they identify with). Additionally, also notice how this makes no reference to sexual orientation, or a person’s attraction (emotional, sexual, relational) to others.
“That’s all well and good,” you may say, “but you can’t define your way out of reality with all this propaganda, Bro-seph Goebbels.” To which I’d say, first, nice Nazi reference. Second, though, is this issue so cut and dry? Clearly, being transgender IS NOT the same thing as having a variation of sexual development, but discussing the topic quickly would help elucidate that this is not as simple as we might like to think. For example, what if someone has the chromosomes XXY, a condition known as Klinefelter’s Syndrome? Which bathroom should this individual use – the one corresponding to their two X chromosomes or their external physical characteristics, which are often more masculine in appearance? How about 5-alpha reductase deficiency, in which genetic males (XY) only are affected; they have male gonads but also often a female appearance? I could keep going (Androgen Insensitivity Syndrome, Congenital Adrenal Hyperplasia, etc.), but I think you can get the point – the issue is far from simple. And before you play the transgender people were not born that way like people with a variation of sexual development card (often found in the deck next to the 7 of diamonds), let me point you to several recent scholarly articles that you can find here, here, here, and here suggesting that the brains of transgender people may differ from the brains of cisgender people, and that their brains may work more like the brain of the gender with which they identify, not the brain of their sex at birth. I am in no way of favor of biological reductionism; the science isn’t there (yet), and even if it was, I think it misses the mark and could be used as fuel for eugenics-esque positions (e.g., if we know what is “wrong” with the brains of transgender people, maybe we can “fix” the “problem”). I also am in no way making some blanket denial of differences between males and females; clearly, there are differences. I am merely suggesting that the issue is not as simple as presented by some people, and that to treat this as some black-and-white, cut-and-dry topic grossly misrepresents the science of the matter. Additionally, conflating or equivocating among terms like transgender and cross-dressing completely misrepresents the matter and demonstrates a lack of knowledge on the subject – that is, people who are transgender are not confused, nor do they just wake up randomly some day and decide they want to be the opposite gender, or at least dress that way. This cuts to the very core of how they view themselves and generally persists over time. Sure, there can be fluctuations, but I’ll also be the first to admit that my own views of what it means to be a man have changed over the course of my life, not because I am confused, but because people (hopefully) learn and grow.
Now, regarding safety of women and children… These are some of the arguments that get under my skin the most. First, to the best of my knowledge, there are NO documented cases of transgender people committing sexual crimes against anyone in restrooms and changing facilities. Absence of evidence, of course, is not the same thing as evidence, but it’s also unfair to be asked to prove a negative. Second, there are oft-cited examples of cisgender males pretending to be females to gain access to female restrooms/spaces to commit sexual crimes. If you’ve taken the time to read through to this point (and if you have, kudos to you, as I’m realizing how ridiculously long this is; you must really be interested in the topic or my mother, or both – Hi Mom, I love you!), you hopefully understand why this IS NOT the same thing, at all, as someone who is transgender using a restroom. There is no assumption in someone who is transgender using a restroom being sexually attracted to anyone else in the restroom: again, if you’ve been keeping score at home, gender identity does not equal sexual orientation. Third, allowing people who are transgender to use the restroom of the gender they identify with in no way makes committing a sexual crime legal, and clearly having no law allowing transgender people to use the bathroom they identify with has not stopped cisgender males from committing sexual crimes. In other words, the women and children are as safe with transgender people in the restroom as they are without them, and penalizing transgender people for the crimes of cisgender males doesn’t seem to make sense.
What about the comfort level of everyone, and feelings, then? I’m not sure of the best response here, honestly, as I don’t doubt some people would feel uncomfortable if they knew someone transgender was using the same restroom as them. However, what would be the source of that discomfort? The reasons listed above that I hope I’ve done a reasonable job of discrediting, particularly the safety concerns? Everyone has every right to their feelings; I don’t deny that. However, if we’re going to give less priority to any feelings, I think we can agree that it should be the feelings that, although felt no less intensely than other feelings, have the least basis in the facts. If people are uncomfortable because of ignorance, that’s not a reason to deny someone else the right to use the restroom. For example, if someone said they refused to share bathrooms with Mexicans because they are likely to get a disease from a Mexican, we would not really honor or respect that because, factually, it isn’t true. Alternatively, if people are not comfortable because of their religious beliefs, no matter how sincerely held those beliefs are, again, that’s not a reason to prioritize those beliefs. If someone’s religious beliefs were that Caucasians are racially superior and should not share restrooms with people of color, that also is their right to believe that, but we’re not going to go around creating separate restrooms because of it.
So, when people who support HB2 accuse those who oppose it of wanting to be more respectful of the feelings of transgender people than others, I suppose they’re technically correct. However, I’m okay giving less priority to feelings that are derived from ignorance about what it means to be transgender and use the restroom.
Another word here, and that is for the people who would accuse individuals who are transgender of being confused and/or having a mental disorder, gender dysphoria (formerly gender identity disorder). The argument is that, typically, the person loves and respects these people, but their mental disorder should be treated, not celebrated or embraced. However, a closer look at the diagnosis of gender dysphoria would suggest that the diagnosis is typically made upon the distress or impairment that accompanies feeling trapped in a body that does not match one’s perceived gender, and having to endure things reminding you of this (such as being forced to use restrooms and changing facilities that do not match your identity). This also means that it is possible for someone to be transgender, and if this is not distressing or impairing to them, to not meet criteria for gender dysphoria. Also, if you are familiar with the treatment for gender dysphoria recommended by all the major, reputable healthcare organizations, the recommended treatment is to help the person make their body match what their brain tells them. That is, the treatment for gender dysphoria is to embrace the gender identity the person perceives and help them live their life as that gender.
Which leads into my last point here (Last point? You’re saying, “Holy cow, Le-bro Tolstoy, you’re finally concluding this War and Peace length section? Praise the Lord” To which I say, you are very well read, or at least up on your literary references; you must have attended a great school): some people have also pointed out the language of the bill more specifically says people only need to use the facilities matching the sex on their birth certificate. “So, if someone really is transgender, then all they need to do is have their operation, change their birth certificate, and voila!” Au contraire, mon fraire (I don’t speak or spell French, so forgive moi). First, not all transgender people have surgery to affirm their gender. The reasons are numerous, but include, importantly, that the procedure is expensive and may not be covered by the person’s insurance, if they even have insurance, and that is assuming the person desires to have surgery. And even if they do have the surgery, if you’ve ever tried to get a government form/identification changed, you know the logistical nightmare that can present. And even if they do manage to get their birth certificate changed, that may not be the best decision in other domains of their life. For example, in healthcare, even if someone born a male has surgery to affirm her as a woman, that person will still have a prostate. That prostate should be screened for prostate cancer, and treated if cancer is detected. However, you can imagine that if your insurance company has ever questioned the medical necessity of a procedure you’ve had, you can imagine they may balk at covering prostate care for someone who is listed officially in their system as female. And if you’ve ever tried to work through the red tape with your insurance coverage, you’ll believe me when I say that getting the care covered is not as simple as being willing to sit on hold for a few minutes before having a brief and helpful conversation with an insurance representative. So, no, changing the birth certificate of every transgender person is not a win-win workaround to this issue.
Let’s now turn to the other portion of the bill that I question.
PROTECTION OF RIGHTS AND DISCRIMINATION
Section III of the law establishes a statewide non-discrimination policy that everyone in the State must adhere to, which cannot be superseded by any local government or organization. Sexual orientation and gender identity (as well as veteran status, for those who care about veterans and are aware of discrimination they may face) are not included in this non-discrimination policy. That means that although different universities or city governments, as well as private business in the state, can create non-discrimination policies for their own LGBT employees, they are under no obligation to do so. In effect, this means that it is perfectly legal in North Carolina for fire someone for being gay, lesbian, bisexual, etc., or being transgender; these individuals have no recourse through legal means the same way someone fired for age or racial reasons does.
Defenders of the law are quick to point out that the law does not discriminate, and any and all businesses, as well as local governments and state universities and colleges, are more than welcome to have their own policies that protect LGBT individuals. This is, of course, technically true, but entirely misses the point. What, at least in part, is the purpose of a state having a non-discrimination policy in the first place? Can’t we just trust everyone to treat everyone else as equal, and/or can’t we trust the free market will correct itself and that employers who discriminate will eventually be forced out of business when people speak with their money and don’t invest in the company or purchase its goods/services? If your answer is anything but “no,” either you are really philosophically committed to your position on free markets, or you’re being a bit dishonest. We agree that some groups of people, like racial and ethnic minorities, are likely to face discrimination solely on the basis of their membership in this group, and we agree that this is not okay. Instead, we agree as a society we need to take steps to insure equitable treatment of those, at least historically, at higher risk of facing discrimination.
What then, does it mean, to deliberately exclude a group from the list of those protected? To me, it is tantamount to saying either this group is not at risk for discrimination, or this group is less worthy of protection and discrimination against them is right, or at least acceptable. To the first point, the evidence supports that LGBT people have a history of facing prejudice and discrimination – people have negative attitudes towards them, and they treat them differently in a way that adversely affects them; they are not treated equitably. To run through all available evidence here would be well-beyond the scope of this already rather unwieldy blog post. As my area of expertise is healthcare, particularly mental health, let me quickly direct you to at least a couple resources from the IOM and the APA that make this point better than I can make it.
To the latter point, regarding worthiness of protection, I suppose a couple of arguments against protection can arise about special rights, choice, and religious freedom. People say that LGBT individuals are demanding special rights. As if simply asking to not be fired or denied access to public accommodations is special – it’s not special when we offer this protection to other classes of people, so what makes LGBT people different? People say no one chooses their age or race, but people choose to be LGBT. In addition to the research I mentioned above, let me assure you that the science suggests that, although we may not (and may never) fully understand all the reasons behind why someone loves who they love and perceives themselves to be a man or woman (or some non-binary categorization), the science community, along with all major reputable health care organizations who based their evidence-based practice on science, realized some time ago that sexual orientation and gender identity are enough NOT a choice and that the ethical way to treat these individuals is NEVER to try to change their sexual orientation or gender identity. People also say their religious freedom is being trampled because it is their sincerely held religious belief that LGBT people are sinful in some way. To this, I say that such an argument misunderstands the concept of religious freedom – religious freedom is freedom to practice your religion as you choose without infringing upon others or forcing your religion upon others. It is completely someone’s right to believe being gay or transgender is a sin, but it is not within their right to codify this in the civic law. Although the ethics upon which we base our law may be colored by or informed by our religious beliefs (or lack thereof), unless we’re looking to establish a theocracy, it cannot be the sole basis for our laws. We need to be able to turn to other sources of information, including science and facts, and I’m hoping I’ve presented enough of that here to suggest that they don’t support the idea that someone being gay or transgender is inherently harmful to themselves or others. Or, put another way, if someone said their sincerely held religious beliefs were that people of color are inferior human beings, we’d say they have a right to that very mistaken belief, but that doesn’t give them the right to discriminate against people of color in employment or access to public facilities. And while I cannot speak to other faith traditions, I can say as a Christian (my own faith, which is a central component of my identity – my relationship with my Lord and Savior Jesus Christ is the most important relationship in my life) I’m confused as to where we are taught we should deny employment to LGBT individuals, and why we should consider this “sin” (clearly, I don’t view it as sinful) but not other sin in employment (should we encourage legislators to make it legal to fire people because they’re divorced, or love money more than God, etc.?).
So the problem with the law is one of omission, rather than commission. It is an omission that loudly and clearly communicates, one more time in a long history of discrimination that includes an embarrassingly underwhelming response to the HIV/AIDS crisis of the 1980s, that LGBT people matter less, that their lives, their liberties, their pursuit of happiness are less than those of others. HB2 says, when you read between the lines, “LGBT people – we do not care enough about you to protect you in the same way we are willing to protect others.”
If you have made it this far, congratulations! And thank you! Although, I warn you, your indulging me like this only encourages such behavior in the future.
Since you’ve been so kind, and I’ve already prattled on for almost 4000 words (thanks, word count function in MS Word, for judgingly showing me my word total at the bottom of the screen; you’re more of a buzzkill than non-alcoholic beer), I’ll wrap this up quickly. There are a lot of reasons I think HB2 was not a good idea, and I’ve only scratched the surface here. I understand that, even if someone has read through everything I’ve written, they may still disagree with me and think HB2 is a good idea, or at least not a bad one. I don’t like that, but I also want you to know I don’t think it makes you a bad person – I may think your beliefs are bad, but that does not make you a bad person, and you’re entitled to your beliefs. That’s what I love about America – you’re free to be wrong 😉 However, clearly I feel strongly that much of the support for HB2 may be rooted in ignorance of or misunderstanding information relevant to the situation, and if I can move the needle at all to change any of that, I want to. Even more so, though, even if no one changes their beliefs because of what I’ve written, I’m still glad I wrote this. I believe and feel strongly about this, and felt very pulled to write about it. This is exactly the kind of thing I started this blog for, and I’m so grateful to you for sharing with me in this.