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Bathroom Bigotry: North Carolina’s Discriminatory Law Targets Transgender Citizens

Two weeks ago, transgender individuals living in North Carolina woke up to find that critical non-discrimination protections in their towns and cities had vanished overnight.

In the span of a few hours on Wednesday, March 23, Governor Pat McCrory of North Carolina enacted a new state law that prohibits localities from allowing transgender individuals to use public bathrooms that align with their gender identities. More specifically, and more alarmingly, the bill requires that all individuals use the restroom that corresponds with the sex designation on their birth certificate.

McCrory justified the bill as a public-safety remedy that served to protect women from predatory men in public restrooms. “Ordinance defied common sense, allowing men to use women’s bathroom/locker room for instance,” he tweeted on March 23rd. “That’s why I signed bipartisan bill to stop it.”

The general notion that bathrooms must provide women with safe spaces is rooted in manufactured social understandings that women are inherently vulnerable, and men inherently predatory. But there is no evidence that gender-segregation makes restrooms at all “safer” for any population, or that restrooms inherently pose a greater risk for assault than other spaces.

And the North Carolina bill goes further than perpetuating sexist stereotypes. McCrory’s thinly-veiled implication that transgender women pose harm to cisgender women is both harmfully transphobic and plainly erroneous.

Paranoia, or ‘bathroom panic’, that cisgender sexual predators will exploit gender non-discrimination laws to sneak into women’s restrooms is equally unfounded. The Advocate recently reported: “[T]here has never been a verifiable reported instance of a trans person harassing a cisgender person, nor have there been any confirmed reports of male predators 'pretending' to be transgender to gain access to women's spaces and commit crimes against them.”

Indeed, transgender individuals themselves are the ones in need of protection: in a poll administered by the Williams Institute in June of 2013, 9% of transgender or gender non-conforming respondents reported “some form of physical assault when accessing or using gender-segregated restrooms.”

The North Carolina law is seated in discriminatory intent, but also has a wide reaching discriminatory effect. Even if every transgender and gender-nonconforming individual in the United States could alter their birth certificate to be congruent with their gender identity (which is currently not permitted in Tennessee, Idaho and Ohio, as well as many foreign countries), the North Carolina law would still potentially be unconstitutionally burdensome and invasive. The law forces individuals to produce documentation as a prerequisite for the private activity of using the restroom, with no compelling rationale for doing so.

Even for those transgender people born in states that permit amending one’s sex designation on a birth certificate, the process of obtaining the amendment can be extremely difficult. Some states require a letter from a physician documenting that gender confirmation surgery has occurred. Other states will only amend a gender marker on a birth certificate if the individual obtains a court order. Many transgender or gender-nonconforming individuals are not able (for financial or medical reasons) to have gender confirmation surgery; while others simply do not pursue any form of medical transition when affirming their gender identities. Court ordered changes of gender are unavailable in many jurisdictions and, even when available, can be prohibitively costly and time-consuming.

As of March 28, 2016 the American Civil Liberties Union (ACLU) and advocacy groups have filed a federal lawsuit in response to the North Carolina law, challenging it as both a violation of privacy and discriminatory on the basis of sex. The full text of the complaint is available at http://media2.newsobserver.com/content/media/2016/3/28/HB2Lawsuit.pdf.

For more information about legal issues affecting the transgender community in Pennsylvania, contact Jerner Law Group, P.C.