Two developments give the lie to statements that House Bill 2 provides “common sense” safety protections for women and young girls.
First, an opinion issued by the Fourth Circuit Court of Appeals allowed a transgender boy to challenge his school board’s policy excluding him from the boys’ bathroom. In determining that the federal law known as Title IX requires such access, the court rejected the “amorphous safety concerns” raised by the board. The court observed that no evidence whatsoever showed that the child’s “use of the boys’ restroom creates a safety issue.”
Second, more than 250 anti-sexual assault and domestic violence groups joined a statement challenging HB2’s safety justifications. In the statement’s words, “As rape crisis centers, shelters, and other service providers who work each and every day to meet the needs of all survivors and reduce sexual assault and domestic violence throughout society, we speak from experience and expertise when we state that these claims are false.”
While Gov. Pat McCrory and other HB2 supporters assert that allowing transgender women into women’s bathrooms would make women vulnerable to male predators, they don’t explain how this would work. If they mean that transgender women would prey on other women, no facts support this. As Leon Lott, the sheriff of Richland County, S.C., responded to a similar proposal: “In the 41 years I have been in law enforcement in South Carolina, I have never heard of a transgender person attacking or otherwise bothering someone in a restroom. This is a non-issue.”
Furthermore, supporters can’t point to any incidents of men posing as transgender in order to assault women in any of the 200 cities that have banned gender-identity discrimination. In fact, 15 experts in sexual assault and public safety from 12 states with trans-inclusive bathroom ordinances report no problems with sexual predators exploiting these laws.
Lacking such examples, supporters cite a rare few incidents in places that did not have such ordinances in which male predators dressed as women to enter bathrooms and locker rooms. Allowing transgender women into women’s bathrooms, they claim, would make it easier for such predators to enter women’s bathrooms.
But just the opposite is true. HB2 requires that transgender men, who look like men and wear men’s clothes, must use the women’s room. This requirement would make it easier, not harder, for supposed male predators. To gain entrance to women’s bathrooms, they would no longer even have to dress up as women. Instead, they could enter women’s bathrooms dressed as they are. Given that women do their relevant business behind bathroom stalls, they have no check on whether the men are simply transgender men complying with HB2 or are male predators.
If HB2 doesn’t solve a safety problem, why pass it? There’s no secret that its supporters come not from community advocates against sexual violence but instead from the same folks who opposed same-sex marriage, supported the law allowing magistrates to exempt themselves from marrying same-sex couples, who believe that LGBT status is immoral and who fought passage of a 2009 law protecting LGBT students from bullying. Its supporters have made plain that they don’t like LGBT folks, they view them as aberrant and they really don’t like laws that protect them.
The true motive for HB2 isn’t safety, it is hostility for LGBT persons. Yet the U.S. Supreme Court announced 20 years ago that anti-LGBT animus is an unconstitutional justification for a state law. In the court’s words, a bare “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Intent to harm can be inferred, the court holds, from a state’s justification of a law that bears no rational relationship to the law passed. This describes HB2’s safety justification to a T.
Strip HB2 of its nonsensical safety justification, and the only rationale that remains for its bathroom provisions (and for much of the rest of the bill) is disapproval of LGBT persons generally and transgender persons in particular. Not only does that make HB2 bad legislation, which no legislature charged with serving the interests of all its citizens should have passed, it makes it unconstitutional.
Maxine Eichner is the Reef Ivey II Professor of Law at the UNC School of Law in Chapel Hill.