What state law really says about bathrooms and transgender people

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A judge’s ruling has prompted a new debate over an old issue in North Carolina. Let’s clear things up.

On the night of Sept. 2, U.S. District Court Judge Thomas Schroeder allowed six LGBT North Carolinians to proceed with a challenge to a state law that prohibits cities and counties from passing non-discrimination measures that regulate restrooms so that transgender people can use the bathroom of their choice.

Schroeder also dismissed the plaintiffs’ claim that the law in question, House Bill 142, prohibited transgender people from using the bathroom reflecting their gender identity. “HB 142 does not regulate restroom access in any fashion,” Schroeder wrote in his ruling.

That was actually good news for plaintiffs, said Joaquin Carcano, the lead plaintiff. In a statement released by the American Civil Liberties Union of North Carolina, Carcano said: “I am relieved to finally have the court unequivocally say that there is no law in North Carolina that can be used to bar transgender people from using restrooms that match who we are.”

Not so fast, said NC Values Coalition executive director Tami Fitzgerald, who said Carcano’s contention is “blatantly false.”

“Judge Schroeder’s ruling identifies the real problem with HB 142 — that it does not bar transgender people from using restrooms based on their identity,” Fitzgerald said in an email statement the following day. “However, there are other laws that would.”

If that seems contradictory, well, yes. If there are other laws that ban transgender people from using restrooms based on their identity, why would Fitzgerald fret that the real problem with HB 142 is that it doesn’t do the same?

Just in case, we asked Fitzgerald to cite the N.C. laws that made her characterize Carcano’s statement as false. As of Sept. 5, she hadn’t done so.

There’s likely a reason: North Carolina has no laws that tell transgender people which bathrooms they can and can’t use. If a North Carolina business or public institution wants to let transgender people choose which bathroom matches their identity, that’s allowed. If a business wants to require transgender people to use the bathroom that matches their gender assigned at birth, that’s also not prohibited. (And if a transgender person doesn’t obey that directive, he or she could be subject to arrest for trespassing.)

The latter, however, is discrimination, same as it would be if a business had policies against blacks. But in North Carolina, unlike some other states, transgender people aren’t offered such protections under state law, which is why Charlotte tried to offer its own in 2016.

That, of course, led to HB2, which eventually was replaced by HB 142.

Here’s what hasn’t happened, however: In those North Carolina businesses that allow transgender people to choose their bathrooms — and in states that allow the same — no one is being assaulted or preyed upon. The privacy and safety issues that Fitzgerald and others still cite have always been manufactured. We hope all businesses and public institutions understand that and allow transgender people the freedom and dignity of choice.

We’re less hopeful that the six LGBT plaintiffs will be successful in their lawsuit; courts have generally deferred to North Carolina’s Constitution, which gives the state legislature the power to tell cities and counties what to do. Until the makeup of that legislature changes, our state will continue to allow transgender discrimination, even if the law doesn’t mandate it.