Transgender activists, corporations, entertainers and the media have blasted North Carolina for adopting a law that requires people to use bathrooms based on their physical anatomy rather than on the gender with which they self-identify.
The controversy began in Charlotte where the city council repealed an existing ordinance that specifically excepted restrooms, locker rooms, showers, dormitory lodging and similar facilities from the prohibition on sex discrimination in the city’s public accommodations ordinance. At the same time, the city council added sexual orientation and gender identity (SOGI) as protected classes under the ordinance.
Public accommodations laws prohibit discrimination against certain classes of persons by private businesses, organizations or facilities that sell goods or provide services to the public. The legal effect of Charlotte’s repeal of the restroom exception plus addition of the SOGI protections was that Charlotte businesses and other places open to the public could no longer separate men and women in bathrooms and similar facilities on the basis of gender or gender identity.
The North Carolina state legislature convened a special session before the Charlotte ordinance went into effect and passed the Public Facilities Privacy and Security Act, otherwise known has HB2. The law voided Charlotte’s ordinance and pre-empted similar efforts by localities in the future.
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State lawmakers passed House Bill 2 because Charlotte’s ordinance departed from long-accepted social norms.
Giving persons with male anatomy the legal right to use female bathrooms, showers or locker rooms (and vice versa) raises serious privacy concerns. The bathroom provision of HB2 creates a simple rule: If you have male anatomy, you use the male bathroom; if you have female anatomy, you use the female bathroom – hardly a radical idea.
Transgender persons say HB2 discriminates against them because it doesn’t let them use the bathroom of their choice. Those with male anatomy who identify as female want to use female bathrooms, and those with female anatomy who identify as male want to use male bathrooms. They say it makes them uncomfortable to use bathrooms based on their physical anatomy.
Until recently, no one thought that separating persons in multi-occupancy bathrooms, showers and locker rooms based on their physical anatomy was discriminatory. Courts routinely have ruled that such separate facilities do not violate laws prohibiting discrimination based on sex or gender.
Why do we have separate bathrooms and locker rooms in the first place? It’s because men and women have different bodies, and we want to protect privacy related to our bodies, not our gender identities.
If transgender persons are given the legal right to use facilities of their choice, nontransgender persons will be required to disrobe, shower and perform personal bodily functions in the presence of those with intimate body parts different from their own. While transgender persons have legitimate privacy concerns, so do nontransgender persons.
HB2 balances the conflicting privacy rights. On the one hand, it permits accommodations for transgender persons in public schools and other government facilities, such as single-occupancy bathrooms; on the other, it requires that multi-occupancy bathrooms be separate based on physical anatomy. State legislators recognize that once you privilege gender identity over bodily privacy, there no longer is any reason to separate bathrooms, showers and locker rooms on the basis of sex.
Transgender activists have sued to overturn HB2 and point to a recent federal court ruling to bolster their claims, but that decision did not involve competing privacy rights.
The Fourth Circuit Court of Appeals, whose jurisdiction includes North Carolina, ruled that a Virginia public school must comply with the Obama administration’s broad interpretation of federal law and permit transgender students to use the bathroom of their choice. The court considered bathrooms only, not showers and locker rooms, and the bathrooms in the school had been altered to ensure that no students’ genitals would be exposed. The decision did not address situations where genitals are exposed.
The Fourth Circuit likewise did not decide whether government rules that give transgender persons a legal right to use the bathroom, locker room or shower of their choice undermine the constitutional privacy rights of nontransgender persons. Several courts have said there is a constitutional right not to be seen by members of the opposite sex when undressed.
Privacy rights in multi-occupancy bathrooms, showers and locker rooms are a zero-sum game – whatever one person gains, another loses. Transgender activists want the law to protect their privacy and comfort, but not anyone else’s.
Is that fair?
E. Gregory Wallace is a law professor at Campbell University School of Law. The views expressed are his own and not attributable to Campbell University.