There are a still a lot of misconceptions about HB2, North Carolina’s so-called “bathroom law.” News media have contributed to this — as I confess have I in previous posts — by not making it clear how limited and unenforceable the silly bathroom provisions actually are.
It’s pretty clear the legislature didn’t know what it was passing and the governor didn’t now what he was signing: The secretly-written bill was introduced, passed, and signed into law in less than 12 hours. Even the governor, who still pretends to think the law is “common sense,” has already called for part of it to be repealed (a part he apparently didn’t realize was there when he signed it).
Here are some of the main things people seem to miss:
The “bathroom” part applies only to state and local government buildings
It has no effect anywhere else — not in factories, office buildings, shopping malls, stores, private schools and universities, hotel convention centers, restaurants, churches, or anywhere else not actually operated by state or local government in North Carolina.
HB2 is pretty much unenforceable
It says people must use the restroom corresponding to the gender on their birth certificate. A person’s physical appearance, genitalia, photo ID, and so on make no difference. Only the birth certificate counts. So exactly how is any law enforcement officer going to know what the birth certificate says? (Keep in mind that the person in question might have been born in another state or country.) Indeed, what’s to stop a man entering a women’s room from saying, “My birth certificate says I’m female, so I have to use the ladies’ room”? How could a case be prosecuted? Remember, burden of proof in criminal cases rests on the state, not the accused.
HB2 actually requires some men to use women’s restrooms (and vice versa)
A previous post included a photo of a North Carolina resident who is obviously a man — facial hair and everything — whose birth certificate says he’s female. I suspect he and others in his circumstances (there are a fair number of them, both male and female) will have the good sense to ignore this idiotic law and keep using the restrooms that corresponds to their actual and apparent gender, as pretty much all transsexuals have long been doing. But what if instead they decide to obey the law? There would be transgender men with beards and other bits of male physiology using women’s restrooms, which is what the legislators mistakenly thought they were preventing. How is this “common sense,” as the law’s defenders characterize the law? (My guess is that most of them are simply clueless and confuse “transgender” with “transvestite,” and those who now realize they’ve made a serious mistake are too embarrassed to admit it.)
HB2 prescribes no punishment for violators
It might be theoretically possible that someone breaking the law might be charged with trespassing and hence fined or jailed, but the law itself doesn’t say what (if any) consequences violators should face.
If HB2 is a needed protection, why doesn’t it apply outside of government buildings?
And why for that matter wasn’t it passed decades ago?
Mainly because existing law already prohibits what HB2 pretends (and fails) to address. We have long had laws on the books against peeping toms, sexual assault, and so on.
Furthermore, except for occasional honest mistakes, people using the wrong restroom is pretty much a nonexistent problem in the real world anyway. In fact, most recent cases of men deliberately entering women’s restrooms have involved a few members of a religious right group “testing” Target’s restroom policy.
The law’s biggest consequences have nothing to do with bathrooms
It’s not clear whether it was deliberate or a mere piece of stupidity — the governor seems to suggest it’s the latter and has called for it to be repealed — but a section of the law effectively eliminates the major civil rights protections in employment. These have nothing to do with the civil rights of gays, lesbians, or transsexuals (who have pretty much no such protections anyway in North Carolina). Instead, the law appears to prevent people from filing lawsuits over employment discrimination on the basis of race, religion, etc. If you’re an evangelical Christian whose boss doesn’t like evangelical Christians and fires you for it, you used to be able to sue in state court. Not any more. You can still sue in federal court, but that’s a lot harder, more expensive, and more time consuming, in part because there are far fewer federal courts that state courts.
And it gets worse
The whole law is counterproductive and unnecessary and needs to be repealed, preferably by this legislature (if they can work up the guts to admit they screwed up in their panic) or by the next one, which hopefully will have more traditional Republicans and Democrats and fewer panic-prone nuts and extremist loons.
What at least some GOP leaders are clearly wishing for is that the law will be overturned by federal courts, thus fixing their mistake without the need to do any work, while at the meantime allowing them to stir up their uninformed base by raving about “federal overreach” and the like. It would be a political win-win for them. In fact, one might cynically suppose that the law was passed purely to stir up GOP base voters who might otherwise stay home in November out of despair over having Trump as the nominee.
(Updated 2016 May 9 and 12 to add the last paragraph and a few clarifications elsewhere.)