In adding a clause to Hegel, Marx remarked once that the great world historical events occur twice: first as a tragedy, and then as a farce. For a 21st century version, I propose adding that it’s getting harder to tell the difference. I am of course talking about North Carolina’s infamous HB2, which requires trans* individuals to go to the restroom of their “biological sex” as recorded on their birth certificate, AND makes several forms of discrimination (racial, etc.) illegal in the state (but not against the LGBTQ) AND bars local municipalities from extending further protections (it does more, but those are enough for one blogpost). The clear intent, and the net effect, is to deprive gender non-conforming individuals from equal protection of the law, and to invite discrimination against them.
In defense of the inevitable firestorm this caused, most of the few state leaders who both support it and who have spoken on it have basically gone into a defensive crouch. The governor claimed to be “blind-sided” by questions about the law, and unclear about its implications. More generally, supporters busy themselves telling fairy tales about the danger to public safety that having “biological” men in the women’s room will cause, no matter how much those men have transitioned into being women. Nevermind that there is zero evidence that there has ever been a problem in this regard, including in the hundreds of jurisdictions that have passed ordinances like Charlotte’s, and nevermind that transitioning is about the most difficult possible way to prey on people in public restrooms. Oh, and nevermind that the law is without theoretical foundation unless you think that trans* individuals are sexual predators, and that cis folks are not.
On the farce side, this means that people who appear to be men will have to use the women’s room (and vice versa), which will almost certainly cause greater discomfort for more people than the previous status quo. On the tragic side, the law is totally unenforceable, and so encourages vigilantism against all gender non-conforming individuals, since they are now all on a continuum that ends with “not being not manly enough to use the men’s room.” As Mary Elizabeth Williams writes on Salon:
“What the opponents of progress and basic common sense fail to grasp is that trans people don’t actually have a “molest your child in the Target toilet” agenda. Who’s really at risk, and from whom? Well, four years ago, Chrissy Lee Polis, a Baltimore transgender woman, was beaten, kicked and spit on by a group of teens when she tried to enter a McDonald’s ladies room. Last month, it was a trans woman who claimed she was sexually assaulted in the bathroom at the Stonewall Inn. And if you’re worried about predators, how do you explain the Texas man who reportedly raped a 12 year-old girl at a CVS bathroom this past winter?”
The good news is that the Fourth Circuit Court (which covers North Carolina) just ruled in favor of a trans* teen’s right to sue under Title IX against a similar law in Virginia; the legal days of that part of the law are almost certainly numbered. North Carolina’s law is now in direct conflict with the federal court that oversees the state, and a legislative refusal to amend the law could therefore cost the state billions (with a “b”) of dollars in educational funding from the federal government.
Public and Private.
But the discussion of transgender restrooms is a red herring. The bigger news, which unfortunately is not getting the attention it deserves, is the rest of the law, which bans cities from adding job and other protections to LGBTQ individuals. In other words, the state has set a ceiling on equal protection, which is basically backwards from how things are supposed to happen. I think the law is clearly unconstitutional under Romer (and Slate’s Mark Joseph Stern, who knows this part of constitutional law a lot better than me, makes a much fuller case for the same argument). More interestingly, all of this is part of an organized campaign by people offended by same-sex marriage. Does anybody remember Kim Davis? She’s the County Court clerk in Kentucky who refused to issue same sex marriage licenses, claiming that doing so violates her religious freedom. It turns out that her legal team and the badly misnamed Liberty Counsel (designated a hate group by the SPLC, for what it’s worth) is the moving force behind anti-LGBT legislation in twenty states, including North Carolina’s. The justification is always “religious freedom.” That is, the pious avowals of bathroom security are pretextual for a larger claim about “religious freedom,” which has been percolating for a while.
The problem is that this newish interpretation of religious freedom stands the First Amendment on its head, and should be struck down on First Amendment grounds, and not just 14th. Here’s the argument. The modern social contract tradition, which roughly coincides with old-fashioned liberalism, functioned in part by maintaining a strict separation between public and private spheres. This tradition, as theorists like Carole Pateman have long noted, could be very bad for women and racial minorities in particular; getting public scrutiny into the private sphere (like the home) has been key to protecting women from spousal rape and battery, for example. But that did not mean it had no virtues, one of which was confining religion to the private sphere. This idea is enshrined in the First Amendment, which (basically) prohibits government from state support of religion – either establishing its necessity, or favoring one religion over another. This arrangement worked for a lot of people: for the public, it meant that citizens could be whatever religion they wanted, or none at all, without risking state sanction. For the religions, it meant they could believe more or less whatever they wanted, and (with relatively few exceptions) act on those beliefs, without risking government sanction. Research from about ten years ago strongly suggests that the current strength of religious belief in the U.S. is because of the privatization of religion: European countries like Britain, with state religion, care much less about religion than Americans do..
This was always a leaky system, and churches, for example, get all kinds of tax exemptions which any number of atheist groups will (correctly) be pleased to tell you is governmental favoritism toward religious belief. And on the other side, polygamy is still illegal, no matter that some fringe Mormon sects practice it. And certainly the privacy of internal Church matters has been used to cover the sexual exploitation of children. That said, the core separation remains. But the current version of “religious freedom” seems to mean more than the idea that the rest of us have to subsidize religion or put up with a leaky system. It means that religion gets to tell the rest of us what to do. But to make this argument is to privatize the public sphere. And to do that is to undermine the entire argument for religious freedom in the first place, since that was premised on the idea that religious freedoms could be largely exercised in private.
This parallels the issue in the challenges to the contraception mandate in the ACA: employees get a compensation package that includes a federal right to contraception, and their employers want to be able to stop those employees from getting contraception, because “religious freedom.” But this is backwards: Hobby Lobby’s employees aren’t necessarily co-religionists, and the claim that their insurance shouldn’t include contraception is the claim that Hobby Lobby’s religion should extend into that part of the public sphere – the part where the company hires employees from the public (and it should be remembered that Hobby Lobby is very happy to take advantage of the road system that brings it customers, the educational system that educates its employees, the police who stop shoplifters, and the fire department that keeps its stores from burning down. This is another huge tax subsidy for the religious).
Sisters of the Poor, in yet another ACA challenge (Zubik v. Burwell, decision expected in June), says the ability to write a note exempting oneself from the contraceptive mandate substantially burdens their religion by making them “complicit” in the provision of contraception. Notice the heads-I-win, tails-you-lose logic: they don’t have to provide contraception coverage themselves, but they also have the power to prevent others from providing it. Even if the first part is defensible on First Amendment grounds, the second isn’t because, again, the private sphere is now supposed to control the public (and, news flash: they pay their employees, who can buy contraception with their pay. Is this complicit? Perhaps wages are immoral too).
The North Carolina law (and parallel state laws that are cropping up across the South) present the same issue: it says that those who don’t like LGBTQ people on religious grounds get to discriminate against them in the public sphere, and that local governments who think otherwise are powerless to stop this. That is, the law trades on the idea that the public sphere should be subject to the rules of the private. Since only some religions want to discriminate against LGBTQ individuals, the law favors those religions over others. Nobody disputes that groups with an anti-gay agenda can operate in private: that’s the lesson from the Supreme Court’s ruling in a 2000 case upholding the Boy Scouts ban on gay leaders. But that is not at all what is happening here. Despite Governor Pat McRory’s series of misleading statements on “Meet the Press,” the Charlotte ordinance applied only to places of “public accommodation.” And that’s the point.
It’s a protection for the public. As Politifact noted in calling the governor out, “the ordinance would have specifically exempted establishments closed to the public like private clubs, advocacy and religious organizations with strongly held beliefs like churches or charities, and nonprofits like homeless shelters.” That is what the First Amendment is supposed to do: to separate religion from the public sphere as best it can. But when the government mandates that some of its citizens are required, while in the public sphere, to be subject to the desires of private religions and their practices, then the First Amendment ceases to function in any meaningful way: the state hasn’t just said religion is a good idea, it has favored religions that don’t like LGBTQ people. Not only does this show the inversion of the First Amendment, it shows that the entire argument is ad hoc (this is evidence supporting unconstitutionality under Romer: the law is clearly designed to single out a particular group) presumably there are religions that think women should stay at home and not work at all. But according to the same NC law, individuals or companies with this belief aren’t allowed to categorically refuse to hire women just because they’re women (and belong in the home).
I grew up in Tennessee, and I am under no illusions that these sorts of shenanigans are new. The County we moved to didn’t have liquor-by-the drink until several years after we got there. But there was at least an honesty in the old way of doing things, when school days included mandated prayer, valedictorians freely gave Christian blessings at graduations, and when alcohol couldn’t be sold on Sunday because that was God’s day. Those of course have mostly been struck down by various combinations of Courts. But now the same agenda is back, targeting gender nonconforming people, with a shiny rebrand: “religious freedom,” which now means the opposite of what it used to. Now it means the freedom to impose one’s religion on everyone else.
Damage to North Carolina, and UNC
In the meantime, North Carolina’s law is not just drawing negative national news coverage, it is getting expensive. This expense is registering in the minds of even conservatives; the NYT article linked above quoted a 79 year old man who had no problem saying that “a man wants to change to a woman, he’s got a mental problem,” nonetheless said he might end up voting for McCrory’s democratic opponent in November because of the economic damage to the state. Last Friday, NASCAR denounced the law in very blunt terms, which is significant in one of motorsports’ home states. Within days of its passage, Charlotte lost up to 500 jobs at PayPal, which canceled an expansion due to the law, and Deutsche Bank announced it would cancel an announced expansion in Cary, costing another 250 jobs. Apparently a whole bunch of conventions in Charlotte are either being cut or about to be cut. And of course that list doesn’t include those who just privately crossed North Carolina off their list. Bruce Springsteen canceled a concert in Greensboro, causing the Greensboro Republican who voted for a bill that deprives thousands and thousands of people even the potential for equal protection under the law to – with a straight face! – call Springsteen a “bully.” Last week, the NBA announced that if the state did not repeal the law, it would play its all-star game next year somewhere else, despite its originally being scheduled for Charlotte. Over 160 businesses have signed a letter opposing the law, and Duke University issued a statement the other day that the institution “deplores in the strongest possible terms the new state law.” UNC Chapel Hill’s Chancellor denounced it, and even new UNC system president Margaret Spellings – who said the system would enforce the law (she was criticized on this point, but as the chief executive of the UNC system, what choice did she really have?) – has publicly criticized the effect the law will have on the system’s ability to recruit and retain good students and faculty, and for its chilling effects on campus discourse. She might have added that being denied access to gender-appropriate bathrooms substantially raises the already shockingly high rate of suicide attempts by trans* college students.
The Governor and the law’s supporters like to say that only extreme leftists who misunderstand the law oppose it. But that list includes some people who aren’t usually known for being on the left, and not just Spellings. For example Charles Krauthammer denounced the law on Fox News as a solution looking for a problem. Hugh McColl, the guy who built Bank of America into the behemoth it is today, and who played a major role in making Charlotte the city it is today, has also spoken against it. Donald Trump (!) denounced it. A recent media attempt to survey state lawmakers on whether they would prefer to keep the bill as is or revise (or scrap) it got less than a third response rate (nearly all democrats; Republicans apparently refused to answer the phone, hung up on reporters, asked to be called back and then didn’t answer the phone, and so on). One supporter said, “we read your questionnaire and believed it was a trap and I would not respond.”
Yep. Basic legislative awareness of public opinion, responsiveness to it, accountability to constituents and awareness that constitutional rights are not subject to legislative vote, and the privacy of religious practices. It’s quite a trap those wicked leftist constitutional founders left for us.