Repeal of North Carolina’s controversial House Bill 2, the so-called “bathroom bill,” was expected to take place Wednesday with bipartisan support. But without consensus in the state legislature’s last session, the repeal effort failed.
The much-fretted-over bathroom bill is a law that requires transgender people, and all people, to use the public bathrooms and locker rooms corresponding to the gender of their birth. The city of Charlotte tossed out a home-turf ordinance that counters HB2 on Monday, reportedly as the direct result of a deal with state legislators certain HB2’s repeal would make the local rule redundant. But, failing consensus, HB2 still stands.
The recently-reupped controversy raged from HB2’s passage in March of this year, spurring boycotts by unlikley allies Bruce Springsteen and Dow Chemical, and, some say, dooming former governor Pat McCrory’s reelection bid.
Like the hubbub it set off, HB2’s origin story is not confined to North Carolina: It starts in the same busy corner of D.C.’s bureaucratic jungle that’s borne so many national headaches of the last eight years.
The civil rights offices of the Departments of Justice and Education envisioned a brave new world free of the boy-girl binary that confines everyday life. With ample agency “guidance,” grown in multitude and complexity over the last two years, federal employees have “clarified” a “framework” for enforcing their radical vision.
Attempting to reclaim authority from the feds, 19 states initiated “bathroom bills” of their own. North Carolina just got there first—and not one but two angry agencies shot back.
Federal guidance reinterprets existing laws to bring them into step with an administration’s agenda. And although guidance claims to be “non-binding,” a looming threat of federal investigation gives it the force of law—just without having to win congressional approval or undergo the public comment process required for agency regulations.
In May, the Justice Department’s civil rights office threatened to revoke federal funding to North Carolina schools that abided HB2, then state law. By the end of that month, the Education Department and the Justice Department had decreed via joint guidance to all schools and colleges that the word “gender” does not mean what it used to. Specifically, it does not mean what it did in 1972 when Congress passed the education amendment Title IX, a 37-word clause that prohibits sex discrimination in schools that accept federal money. Under this latest guidance, any school that does not honor a transgender person’s gender identity can be stripped of its funding.
In the months following, 25 states signed onto two lawsuits aiming to block its enforcement. In late August, a federal judge in Texas issued a preliminary injunction against federal action to deny funding to schools that do not follow department guidance.
A handful of states still have pending legislation to protect the segregation of bathrooms by birth-gender. Texas lieutenant governor Dan Patrick has pledged to prioritize “The Women’s Privacy Act” for his state in the coming year, saying, “If it costs me an election, if it costs me a lot of grief, then so be it. If we can’t fight for something this basic, then we’ve lost our country.”
Now, these proposed state laws won’t undo the federal redefinition of gender as an identity preference. But an agency guidance’s towering authority sits on shifting political sands. Whether or not any more states pass their own HB2’s, all it would take to overturn the enlightening Title IX guidance that started the bathroom wars in the first place is a subsequent guidance from the Trump administration.
