North Carolina's "Papers, Please" Bathroom Bill

In what seems like a case of legislative "gay panic," North Carolina hastily called its legislature into a special session March 23 for the first time in 35 years. The issue? The city of Charlotte had passed an anti-discrimination measure Feb. 22, which added sexual orientation and gender idenitity to its list of protected classes, so that businesses and public agencies could not discriminate against LGBT people. The law was to go into effect April 1. 

Before it could take effect, the state legislature passed its own bill slapping down any local law that would protect LGBT people, (and would prohibit any city from mandating a minumum wage higher than the state's.) Questions of legal discrimination are reserved to the state to determine; North Carolina's antidiscrimination laws do not include the categories of sexual orientation and gender identity. This is a public accommodations bill--any business, whether a restaurant, a taxi, or a roller skate rental--can refuse to serve LGBT people on grounds of sexual orientation or gender identity. This is not even presented as a reglious freedom initiative--it is just a permission slip for bias. 

It was bathrooms that sparked the most debate, both regarding the Charlotte ordinance and the state bill.

In North Carolina, one must use the restroom that corresponds to the sex on one's birth certificate. The message is clear. Be prepared to carry your birth certificate if you wish to use a restroom in North Carolina. 

Consider this: trans men tend to be shorter than average men, trans women taller than average women, (if they transitioned after puberty. Long bone growth--so most growth in height--stops at the end of puberty, generally age 17-19 for boys, 14-15 for girls.) So are you a man on the short side, perhaps bearded? Papers, please, before you use a restroom. Or are you a woman closer to six feet tall? Papers, please. Are you slim and androgynous, perhaps dressed in jeans and a T-shirt? Papers, please. Are you a man or woman who isn't dressed like the store clerk thinks you should be? Papers, please. And God only knows what happens in North Carolina if the validity of your birth certificate is challenged. 

Let's be real--generally, short bearded men aren't regarded with suspicion when they go into the men's room, even if they go into a stall to urinate. Tall women aren't usually asked for gender verification in a women's room. Indeed, the law now mandates the opposite--that a transman, in male dress, masculine in appearance, is REQUIRED to use the women's room, and a transwoman, in female dress, feminine in appearance, is REQUIRED to use the men's room. Many trans people are not unusual in height for their sex--how will anyone know to stop them? It is unclear to me how the law can achieve this part of its apparent end--that restrooms be used according to the sex one was assigned at birth--unless everyone is required to show proof of sex before entering a restroom. 

Let's put this restroom thing, um, to rest. Reports of predatory trans people lurking in restrooms are mythical. The opposite is sadly more real: more than one in four trans people has faced a bias-driven assault, rates that are higher for transwomen and transpeople of color. 2015 marked a historic high in murders of transpeople. 2013 was the first year the FBI kept statistics on anti-trans incidents, and they continue to rise even as hate crimes overall decrease. Fully one in five hate crimes is directed based on the victim's perceived sexual orientation or gender identity. And restrooms specifically? One study reported that 68% of transpeople and other gender non-conforming people had experienced verbal abuse, and 9% reported at least one incident of physical assault, in sex-segregated restrooms. One effect of North Carolina's law will be to put transpeople into danger if they wish to use a restroom. 

Presumably North Carolina does not approve of violence against transpeople or members of sexual minorities, but it just passed a law that said it's OK for businesses to declare LGBT people unwelcome, a law argued on the basis of ungrounded fears that they are dangerous.

This, I suspect, is the real purpose of the law--to encourage North Carolinians to see gay or trans people, (and others who might not fit easily into social norms for masculine and feminine,) as threats to public safety. They may be denied not only access to restrooms, but service in any public accommodation. LGBT people, or, more accurately, people THOUGHT to be LGBT, can be denied service at lunch counters, retail stores, rental agencies, schools, and recreational facilities. Of course, they may be fired from their jobs at will. Wasn't that why the original "Papers, Please" law was enacted in Arizona, to encourage white people to wonder if any person of color might not really "belong"?

We now know that gender identity, or sense of being male or female, is established prenatally, at a different time than sexual differentiation of the genitals. A person's genitals at birth usually, but do not always, correspond with one's gender identity, and BOTH are physical, bodily aspects of our lives. Gender identity, whether cis-gender or transgender, is not reducible to a voluntary state nor is a purely psychological phenomenon. Gender identity is a part of how we are born, how we are created by God. 

The Catechism of the Catholic Church specifies that gay people "must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided." (2358). Transgender people are not mentioned. Allowing LGBT people to be barred from public accommodations at will would seem to violate the Caetchism's teaching of respect for the equal dignity of all God's children. Sadly, the Catholic bishops of North Carolina, Peter J. Jugis of Charlotte and Michael F. Burbidge of Raleigh, issued a warm thank you to North Carolina for denying the equal dignity of our LGBT brothers and sisters.

It didn't have to be that way: when Gov. Nathan Deal of Georgia vetoed a similar anti-trans law, Atlanta’s Archbishop Wilton Gregory and Savannah’s Bishop Gregory Hartmayer said they “do not support any implementation of [Religious Freedom Restoration Act] in a way that will discriminate against any individual” because each person’s dignity is “the basis for religious liberty.”  And yesterday, when Mississippi's Gov. Phil Bryant signed into law a "religious freedom" statute as broad in scope as North Carolina's, Jackson's Bishop Kopacz applauded the parts of the bill specifically pertaining to exemption for religious institutions, but distanced himself from the more general aspects of the law: "The diocese had no involvement in the other portions of the bill that addressed business and government operations." 

And the USCCB did take a strong stand against Arizona's "papers please" law. They should do so for these laws as well. 

 

Lisa Fullam is professor of moral theology at the Jesuit School of Theology at Berkeley. She is the author of The Virtue of Humility: A Thomistic Apologetic (Edwin Mellen Press).

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