Charlotte, N.C., just repealed its bathroom ordinance. The state legislature is repealing the notorious law it passed in response. This mutual disarmament is good for everyone.
Government needs to get out of culture war issues as much as possible, the question of transgendered people in bathrooms included. One key consideration: let’s not assume rules of politeness need to be legislated.
In D.C. — even in conservative circles of D.C. — it’s not uncommon to attend a small event with a transgendered person. It’s pretty obvious what courtesy and basic decency prescribe, and it’s not what some conservative scare-talk about predators would suggest.
If a transgendered person came to your office for a meeting, you wouldn’t stop the person from using the bathroom of his or her choice.
Even aside from offending and embarrassing a guest, it would be far more awkward for your other colleagues — maybe not in the know — to see a person in a dress with long hair and makeup enter the men’s room than it would be for a biological male identifying as a woman to discretely duck into a stall in the ladies’ room.
This course of action doesn’t endorse any view that gender is merely a social construct, that “cisnormativity” is bigoted, or even that men identifying as women — and vice versa — is perfectly healthy. It’s just being polite.
The error arises when politicians try to legislate this politeness. Appropriate norms for how to treat people aren’t necessarily appropriate rules to legislate on people.
In North Carolina, Charlotte’s City Council made the first mistake. In early 2016, the city passed a non-discrimination ordinance. Sponsors touted that the bill made it illegal to refuse service to someone for being gay. But the law also basically legislated bathroom admission.
Charlotte was not being plagued by a problem of transgendered people being blocked from the bathrooms of their choice, the way racism against blacks had torn the South apart for decades. Yet Charlotte passed this law, exposing private business owners to lawsuits and legal punishments.
Legislating the matter transformed it from an issue of “people come in all varieties, treat everyone with respect,” to what seemed like special protections for transgendered people, thus endorsing a view of biology, sex and gender that much of the city didn’t share.
The ordinance also stirred up fears of predators — men getting into a ladies’ room thanks to this law, and then assaulting or leering at vulnerable women. Nobody showed that this was a real threat, but the same mindset behind the Charlotte law — we need a law to ban a possible bad thing — drove the state legislature to pass HB 2. HB 2 blocked Charlotte and other cities from implementing their antidiscrimination laws.
While Charlotte’s law created only a small stir, the state law created a national uproar. What conservatives had seen as a defensive action by the legislature was portrayed as an offensive in the culture war, legalizing discrimination and legislating lesbian, gay, bisexual and transgendered people as second-class people.
In the culture wars, whoever is seen as the aggressor is typically the loser, and that’s what happened here. Conservatives in Raleigh thought they were stopping Charlotte’s city council from bossing around businesses and micromanaging bathrooms, but HB2 itself was perceived as a law regulating bathroom access.
This is a familiar pattern: the Left injects government into an intimate issue, conservatives respond and are accused of becoming morality police.
President Obama’s Department of Health and Human Services, for example, created a rule forcing nearly all employers to cover 100 percent of the cost of birth control and sterilization for all employees for whom they provide health insurance. When Republicans moved to shield some employers, who objected on conscience grounds to paying for some of these drugs, Democrats successfully portrayed the conservatives as the aggressors: They’re trying to take away your birth control and give your boss control over your reproductive systems!
When the Supreme Court overturned the voters and the legislatures in dozens of states and required states to administer gay marriages, some conservatives ceded that ground and tried to protect conscience rights again. The resulting Religious Freedom Restoration Acts were denounced as bigoted and portrayed as culture-war offensives.
In North Carolina, both the liberal legislation and the conservative reaction were out of place. Charlotte shouldn’t have stuck itself into private restrooms, and the state shouldn’t have stuck itself into the city’s sticking itself into restrooms.
In our culture wars, there are some fights that will need to be fought in the public-policy arena: abortion and public school curriculum, to name two. But the way to create peace in the culture wars — to live and let live, as they say — is to keep government out of these issues as much as possible.
Kudos to North Carolina’s politicians for getting out of everyone’s bathroom.
Timothy P. Carney, the Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Tuesday and Thursday nights on washingtonexaminer.com.
