Today, the Fourth Circuit – which covers North Carolina – allowed to let stand its earlier ruling legitimating the Department of Education’s definition of “sex discrimination” to include “gender discrimination.” The case was specifically about a Virginia trans* male high school student who was banished to the women’s room. No doubt there will be an appeal to the Supreme Court, but for now, the law of the land here is that refusing to allow public school students to go to the bathroom that matches their gender identity puts states at risk of losing a lot of federal money.
Last week, there were two more noteworthy developments around North Carolina’s HB2 (the law that forces trans* people to go to the bathroom of their “biological sex” as listed on their birth certificate, bans cities from expanding anti-discrimination law to include protections for the LGBTQ, and which bans municipalities from raising their own minimum wage). First, on Friday, the UNC System filed legal papers indicating that it will not enforce HB2 on system campuses. The move seems to have been orchestrated by new system president Margaret Spellings, and the affidavit includes the statements that “there is nothing in the Act that prevents any transgender person from using the restroom consistent with his or her gender identity,” and that neither the system nor its member institutions has “changed any of its policies or practices regarding transgender students or employees,” since the act lacks any enforcement provision. UNC mainly wants off the defendant list, but Spellings’ leadership here – and I don’t say this sort of thing often – has been pretty good. She hasn’t denounced the law in so many words, but she’s both protecting the system and our trans* students. Second, the bad PR continues: the law made the New Yorker (the op-ed draws the correct connection to racial integration, and how Southern states resisted that).
With all this news, maybe it’s time to point out some of the obvious problems in the arguments of the bill’s defenders, and what their theoretical assumptions seem to be. Collectively, these demonstrate two, intertwined things. On the one hand, the law is mainly expressive: that is, it doesn’t actually do anything, except scream from the rooftops that the state of North Carolina does not like LGBTQ people. And that, more than anything else, I suspect, is why the backlash against it has been so intense. On the other hand, it shows that the North Carolina legislature operates according to a theory of sovereignty that finds its clearest expression in Carl Schmitt, and the law itself is an attempt to relegate trans* people to what Agamben calls homo sacer. Here’s the arguments:
1. “They made us do it.” Charlotte passed an anti-discrimination bill, including bathroom rights for trans* individuals. The legislature held an emergency session on March 23, with the sole intention of preventing that ordinance from going into effect (“state of emergency:” suspension of the law by the sovereign). Twelve hours later, they had their bill and the Governor signed it. If you take the rhetoric seriously, it as though the legislature conceives of itself as a set of sovereign billiard balls with no agency at all. This argument was debunked by Alan Gewirth a long time ago (see “Are There Any Absolute Rights?” in his Human Rights: Essays on Justification and Applications (Chicago and London: University of Chicago Press, 1982), 218-233), with the analogy to those who told MLK that his rallies would “cause” white people to conduct lynchings or otherwise retaliate. Gewirth notes that those white people have agency. If they lynch black people, they are guilty of murder, and “MLK made me do it” would be about the dumbest defense they could offer in court. By extension, the entire moral responsibility for passing HB2 rests with those who voted for it and signed it (90% of those people, btw, are in districts so gerrymandered that they cannot be held accountable for the decision. That’s another problem, and a big one, but it would be too much for one post to go into it. It’s hard not to think of same-sex marriage as a cynical election year turnout trick in 2004, but it’s not working here: the real offenders are in safe districts, and the governor is taking a beating over this).
2. “I didn’t have time.” This is Governor McCrory’s standard line about why he signed the law on March 23. But the Charlotte ordinance was due to go into effect on April 1. He had a week to talk to others – including the Charlotte government (which apparently knew that they were going to lose corporate relocations over HB2, and whose phone calls he did not answer) and the large number of business interests who have sense spoken out against the bill, and urged its repeal. Oh, he also might have talked to someone, anyone, in the LGBTQ community.
3. “Trans* is not a real thing.” They don’t say this out loud, but nothing else they do say makes much sense without believing this. They treat trans* as playing dress-up.
4. “They’re predators.” This one shows up when HB2 defenders start sentences with clauses like “what if a man walks into a woman’s room…” But there is no evidence, anywhere of trans* people assaulting others in restrooms – Breitbart’s effort to prove it actually found that it was cis men who committed assaults in restrooms. In the meantime, there are documented cases of cis men assaulting women in restrooms, and assault in restrooms is already illegal anyway. The anti-trans* claim doesn’t even rise to the level of basic coherence if you admit that trans* is real: why one earth would you bother to undergo the complexities of changing your gender identity if all you want to do is assault people in a restroom? Why would you even bother to play dress-up, for that matter? Like the rest of us, criminals usually try to get things done the easiest way they can. There is plenty of evidence that trans* people are often subject to assault, of course. That the bill’s supporters routinely ignore this fact while insisting that the imaginary is factual indicates that the law is not based on fact. It’s based on a desire to indicate state disapproval. It’s also not the first such expressive disapproval coming from this legislature: when scientists at UNC Wilmington predicted a 39 inch sea-level rise over the next hundred years, the state promptly passed a law requiring that only historical data about sea-level rise be used in state policies, effectively declaring the use of evidence of climate change illegal. Democratic Governor Bev Perdue inexplicably let that one become law without her signature (why no symbolic veto, even if you know the override is coming?). So there you go: the state of North Carolina disapproves of trans* people and science.
5. “Massive overreach.” That is what the Governor says Charlotte did, though the fact that there are over 200 other cities and places with similar such bills (and still no reports of problems!), and since there was no equivalent to Title VII in North Carolina before HB2, it would not be unreasonable for Charlotte to do the things other cities do to enrich the lives of their citizens and attract investment. What’s telling is that McCrory also refers to everything the federal government is doing to fight HB2 as “massive overreach.” This tells us that the other thing operating here is a theory of state sovereignty. It’s pretty much out of the Carl Schmitt playbook: the state (meaning both the state in the U.S. federalist sense, and the state in the European sense) has the right to decide who gets protected by the law and who does not. It’s like the old arguments about “nullification” (also by Southern states) to try to get out of racial integration. And there are definitely members of the Senate, in particular, who seem to have this attitude: one Tommy Tucker is perhaps the most egregious, telling those to opposed him to “sit down” (for pointing out that a proposal that those seeking TANF benefits be required to front the cost for drug testing had been found unconstitutional elsewhere) and informing a newspaper publisher that “I am the senator, you are the citizen. You need to be quiet.”
As I noted, HB2 has no enforcement provision, presumably because if it did, it would be transparently Orwellian. If the state passes a law like this without even trying to think about how it might enforce that law, it expresses two things: first, the law is really about contempt for the LGBTQ community; and, second, that private citizens can enforce it in their own way.
As Foucault commented with regards to state racism, the biopower that strives to optimize a population often/always has a dark side: an out group that it allows to die, literally or figuratively. I am not generally inclined to Agamben, but the analogy here is too exact not to notice. Agamben suggests biopolitics always produces “bare life” – homo sacer – those who “may be killed and yet not sacrificed” (Homo Sacer, 8). In other words, the state withdraws the protection of the law from certain individuals. Agamben’s examples include the experimental subjects of Nazi science (the Versuchpersonen), and all of those who perished in the camps. North Carolina – which had an aggressive eugenics program – adds trans* people to the list: denied the protection of the law in unenforceable, expressive legislation, the trans* are left to the mercy of vigilante enforcers. Fortunately, we (so far) still have the rule of law, even as the state tries to deny it.