Although I have fought discrimination successfully (with more than 100 wins) for more than 40 years, and don’t support North Carolina’s new “bathroom bill,” I think some of the attacks on it are — like reports of Mark Twain’s death — “greatly exaggerated.”
One part provides that only the state should determine which new groups should be protected, and therefore preempts local discrimination ordinances. But state preemption is nothing new.
For example, many states preempt the power of municipalities to protect nonsmokers, But there are no howls of outrage from major corporations, even though those denied protection from this deadly substance constitute the overwhelming majority, rather than a tiny transgender minority — and nobody ever died from having to use the “wrong” restroom.
Various jurisdictions have passed laws prohibiting discrimination against all kinds of groups, including smokers, fat people, people who are ugly, poor dressers, etc. So it’s not unreasonable for a state to want to limit, and to determine for itself, which groups should — and should not — be protected.
That’s what the bill provides. Even though the catalyst involved transgender people, the law limits extending new protection for all of these groups, and for others who might seek protection.
Moreover, the majority of states have chosen not to prohibit employment discrimination based on gender identity. So North Carolina is far from alone in declining to extend such protection, but strangely these other states are not being hammered, boycotted, etc., and corporations doing business with countries which permit even worse discrimination against LGBT community members probably should not be throwing stones.
Centralizing decision-making about new rights in the state legislature also helps insure uniformity, so statewide companies don’t face different rules about whether they can decline to hire smokers, whether TV stations must hire anchors who are fat and/or ugly, who can use which restroom, etc.
Also, having the state decide complex issues may sometimes be better than leaving it to the whims of hundreds of tiny city councils, especially when it involves special privileges, not discrimination.
Refusing to hire or admit people solely because they are transgender would constitute discrimination, but granting them a privilege to use restrooms intended for people with a different anatomy is arguably more of a special accommodation — one which, oddly, is not extended to transvestites, who likewise dress as women. but identify as males.
The bill also prohibits anatomical male transsexuals from using women’s restrooms. Since many current laws permit such males (but not transvestites) to use female restrooms — often in the absence of any proof of their transgender status, and even if dressed as men — the result for many women is an invasion of their sexual privacy.
It’s hard to argue that such a decision is unreasonable, since most states do the same. Also, when Houston, Texas, recently overwhelmingly defeated an ordinance designed to protect LGBT people from being denied jobs or admissions to public places, it did so primarily over the same “bathroom issue.”
The voters feared — based upon both common sense, and numerous instances reported in the media and found on the Internet — that young girls as well as women could suffer not only an invasion of their sexual privacy, but also the very real risk of physical harm, including rape, if the anatomical males overpowered them when they were literally caught with their pants down.
Even women who shared communal restrooms with men in coed dorms, and may be less concerned about an invasion of privacy than their grandmothers, nevertheless could be worried about entering a female restroom and finding an anatomical male already there.
Today, in Houston, they can call the police and have the person arrested. But if the ordinance had passed, they would have no choice but to partially undress, and hope that the anatomical male does not threaten them physically and/or sexually in the semi-private confines of the restroom.
The problem is obviously complicated by the fact that the offending ordinance, like many similar ordinances, would have permitted any male who claims to be transgender to use a female restroom without any need to provide proof of that condition, and even if he looks and appears like any other traditional male rather than like a woman.
Let’s also note that the new law is civil rather than criminal, and provides no penalties for those who use the “wrong” restroom, nor does it require any enforcement efforts — as North Carolina’s colleges have now been advised.
Fortunately, there are many ways not to force transgender people to use a restroom which they find inappropriate, and at the same time to protect the privacy and safety of women using public restrooms.
George Washington University’s experiment with a new “All Gender Restroom” is working well, and avoids the expense and other problems associated with constructing more single-user restrooms.
John F. Banzhaf III is a professor of public interest law at the GWU Law School. Although best known for his antismoking activities, he has won many legal actions against discrimination, and helped persuade his university to prohibit discrimination based upon sexual orientation and sexual identity. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
