Take heart, fair-minded North Carolinians. The state’s not-always-pristine but still vaguely operative image as a place where “the weak grow strong and the strong grow great” is in the process of being dragged through the mud by cynics who prefer to kick people while they’re down. But then, we come across the shining example of a Tar Heel whose impulse is to extend a helping hand – and who has the clout to do it.
U.S. Attorney General Loretta Lynch, born in Greensboro and raised in Durham, crisply articulated principles that are driving the backlash to the law known as House Bill 2 – the notorious “bathroom bill.”
Yes, problems with the law are many-layered and complex. But Lynch boiled them down to terms that invoke, or should invoke, our common humanity.
“You’ve been told that this law protects vulnerable populations from harm,” she told a Washington audience as she explained a push by her Department of Justice to have H.B. 2 declared in violation of the federal Civil Rights Act.
“Instead, what this law does is inflict further indignity on a population that has already suffered far more than its fair share. This law provides no benefit to society – all it does is harm innocent Americans.”
Lynch, who at this writing is about to turn 57, would have been spared the full extent of the cruelties visited upon African-Americans in the segregated South prior to the civil rights gains of the 1960s. But her upbringing and family background immersed her in the ongoing struggle for equal treatment before the law. At Durham High School, bound for Harvard, she excelled in an environment where black students often faced long odds.
Her father, the Rev. Lorenzo Lynch, originally from the Martin County community of Oak City, served for many years as pastor of White Rock Baptist Church in Durham, a cornerstone of the city’s civil rights activism. A grandfather, also a pastor, is said to have helped rural black neighbors deal with the oppression of the Jim Crow years.
It’s not hard to understand, then, why Lynch is championing the rights of another minority whom those in power have found it expedient to gang up on. And if the challenges facing those few of our neighbors who have made the hard choice to change from their birth-assigned gender are ones that most of us have just recently begun to consider and appreciate, that only highlights the scale of Lynch’s moral leadership.
H.B. 2 is in fact a multi-headed monster of discrimination, with anyone outside the heterosexual mainstream among its victims. But its rule for bathroom usage in public buildings by transgendered persons – the rule trumpeted by advocates as the law’s backbone, and as a commonsense nod to concerns about privacy and safety – is especially needless and hurtful.
Under the law, someone who changes his or her gender – certainly not a decision anyone would ever make on a whim or without having experienced depths of anguish – cannot use a multiple occupancy bathroom matching the person’s gender identity.
Instead, that person must use a bathroom or locker room matching the sex denoted on his or her birth certificate. That’s unless the birth certificate has been updated to reflect the gender switch – typically allowed only after a person has undergone expensive and complicated surgery.
The ludicrous scenarios flowing from such a rule have been well hashed over. But as a reminder: What about the transgendered female, born male but looking for all the world like a woman, who is consigned to the men’s room? Or the person whose identity and appearance are strictly male but who has to use the women’s room because he – pronoun chosen advisedly – was born a girl? How would these strictures be enforced? Think of the confusion, the disruption, the alarm.
Indeed, the federal Justice and Education Departments, mindful that the North Carolina controversy is reverberating nationwide, were preparing on May 13 to advise all public school districts that transgendered students are entitled to use school bathrooms and locker rooms consistent with their gender identity. The guidance was to include suggestions for privacy protection — steps that are by no means rocket science and that any school district operating in good faith should be able to follow.
Lynch’s Department of Justice had staked out its opposition to North Carolina’s new law in a court filing on May 9. It acted only after warning state leaders that H.B. 2, in the department’s view, violated sections of the 1964 Civil Rights Act dealing with discrimination in employment and in education.
In response to that warning, Gov. Pat McCrory and his fellow Republicans who control the state House and Senate separately asked federal judges to give the law a green light.
The law’s backers say 1) that they want to spare the state’s females from the scourge of “men” in their bathrooms and locker rooms, where they might do who knows what, and 2) that gender identity in any case is not a category entitled to anti-discrimination protections under federal law.
McCrory’s court filing is actually quite restrained, taking a stand in defense of state employees’ “bodily privacy” and against what he describes as federal overreach. The governor asserts – missing the point — that no employees under his purview are being discriminated against, because everyone must use a bathroom corresponding to their biological sex as shown on their birth certificate. He also says H.B. 2 gives him the leeway to make special arrangements for the transgendered.
By contrast, the filing by House Speaker Tim Moore and Senate President Pro Tem Phil Berger is full of lurid shower scenarios and states’ rights rhetoric even bringing to mind, for those of a historical bent, John C. Calhoun’s wild-eyed theories that helped set the stage for the Civil War by priming the South for secession. And the late U.S. Sen. Jesse Helms would have been right there with ’em.
In a sense, Moore and Berger may be shifting to more comfortable ground in staking their H.B. 2 defense on principles of federalism, by which the states get to call many of their own shots. That helps take the focus off the somewhat unseemly bathroom debate and beyond that off the law’s spiking of a whole range of anti-discrimination safeguards. For example, municipalities are barred under the law from enacting such safeguards to benefit gay and lesbian people.
It was Charlotte’s attempt to do just that, as well as to ensure reasonable, humane bathroom rules for the transgendered, that convinced Moore and Berger to hold a one-day special legislative session on March 23. H.B. 2, signed by the governor before the ink was dry, was the bitter fruit.
It’s been speculated, and there’s no solid reason to disagree, that top Republicans saw the now-superseded Charlotte ordinance as a cause around which to rally the social and religious conservatives who make up a key portion of their electoral base. McCrory, the former Charlotte mayor and erstwhile moderate, may have looked forward to riding that wave in his ongoing bid for a second term. Or he may simply have been swept along.
What’s unfortunate, although perhaps not surprising, is the degree to which public tolerance for the transgendered has lagged the evolving scientific grasp of gender identity’s complex nature. It turns out that gender reflects much more than superficial anatomy. Because of those other factors – hormonal, even the wiring of the brain – it appears to be entirely plausible that someone with male or female “equipment” can think of himself or herself as a person of the opposite sex, can manifest that identity in their daily lives and indeed can be miserable if not allowed to do so.
In that case, then those for whom human rights and dignity are paramount concerns – count the Council of Churches among them – are led to conclude that a transgender person’s identity represents something at the core of that person’s existence, and that it should not be challenged, ridiculed or subjected to humiliation.
Not a problem
So let the legal arguments rage as to whether the transgendered are entitled to protection under the Civil Rights Act, or whether the Department of Justice has followed righteous indignation out the window in an unconstitutional assault on state sovereignty.
The fact remains that the legislature and McCrory were under no compulsion to enact H.B. 2, declaring in effect that the transgendered have no gender-specific rights that so-called normal people are bound to respect. Instead, they came up with a warped solution to a problem that in the real world scarcely exists, if it exists at all.
Transgendered folks have been around for a long time, in one fashion or another, using the public bathrooms in which they logically feel comfortable, and other visitors to those bathrooms have taken it in stride with no noticeable threat to either privacy or safety. But H.B. 2’s authors have sought to stoke those fears, even seeming to take cues from the old-time white supremacists who benefited by conjuring the risks to white womanhood allegedly posed by black sexual predators.
That was an outrageously cynical and slanderous ploy meant to win elections. Back then, it worked. Attorney General Loretta Lynch clearly would like to see today’s historical echo stricken from the record. And she just as clearly can teach her fellow North Carolinians more than a few things about tolerance.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.