How can anyone prove what your sex was on your birth certificate? Are people expected to carry around a copy of their birth certificate every time they need to go to the bathroom?
Presumably, if you are arrested for the fact that you appear to be using the “wrong” bathroom (remember, the statute actually has no enforcement mechanism, but play along here), you would produce your birth certificate to establish your innocence.
I’ve argued from the day this bill was first discussed that it would likely lead to people being improperly denied use of the “correct” bathroom. Suppose that you are a genetic “female”, but you have undergone transition to being “male.” You would, by preference, use the men’s room, and no one would blink because you’ll dress and look like a guy. But NC would force you to use the women’s bathroom. So you’d be a “guy” walking into a women’s room. Guess how THAT one goes down? :dubious:
But wouldn’t the police need evidence (i.e., your birth certificate) before arresting you?
They just need probable cause to arrest you. The evidence gets worked out in court.
This is the kind of poorly thought out bill that comes from catering to blind fear and hatred. There are people who, because of their appearance, will have to regularly decide between breaking the law (probably without being noticed) or following the law and being noticed and possibly arrested.
Meanwhile, the people intent on molestation (which is what people claim to fear) will ignore the law anyway.
I just don’t even see probable cause here.
Why don’t they just mark them with ® and (D) and be done with it?
Moderator Note
Let’s keep the political commentary out of this and stick to the question in the OP. No warnings issued.
Colibri
General Questions Moderator
You don’t need to prove your innocence in court (i.e. your birth certificate), the state needs to prove your guilt. How could this possibly be done?
By the state producing your birth certificate, maybe?
You are attempting to find logic in blind hatred.
Another of those things sometimes called “Fool’s Errands”.
FWIW: I saw a blurb that claimed this bit of nonsense was devised by the same law firm that represented (gratis) Kim Davis - the KY County Clerk who refused to issue any marriage certificates rather than issue “same sex” (I hate that term, but saying “same sex” gets MUCH better polling numbers than using the word “homosexual”: as in “Same sex marriage” vs “Homosexual marriage”.
I love people, Chap 1073.42
Don’t some states reissue a birth certificate after transition so the birth certificate now has the current gender listed?
The OP suggests that the North Carolina law works off your gender as shown on your birth certificate. I have no idea if that’s correct but, if it is, then someone with a corrected birth certificate is presumably good to go.
The vast majority of people look, to all outward appearances, like the sex that is in their birth certificates. So presuming the constitutionality of this statute (on which I’m not taking a position here), the fact that a person looks, to all outward appearances, like a man makes it reasonable to suppose that this person has “male” put down on the birth certificate. Which gives probable cause to suppose that if that person walks into a women’s bathroom, the person is violating a law (whospe constitutionality we presume, mind you) requiring that person to walk into the bathroom in line with the sex in the birth certificate. Not conclusive evidence, for sure, but probable cause yes.
I’m a liberal in NC, but my family and friends are mostly conservative. In addition, most of my family are devoutly religious evangelicals. I have spoken with them quite a bit about HB2 and the Charlotte ordinance that essentially brought HB2 through the General Assembly. I’m going to try to describe what I hear from both sides.
First, there’s no doubt that both the Charlotte ordinance (which essentially allows one to use whichever bathroom, locker room, or changing room one feels comfortable using) and the reactionary HB2 (which requires use to conform to the gender on one’s birth certificate) are both somewhat difficult to apply. Thankfully, the country has not yet decided to make all LGBTQ citizens wear special patches yet, but, in reality, the bar is pretty low if one wants to claim that he/she is LGBTQ (in this case, T being the critical issue).
Second, I believe that my conservative friends are uncomfortable when they consider that, under the Charlotte ordinance, any cis male teen would be able to use high school bathrooms, locker rooms, and changing areas assigned to females, and vice-versa. They remember, as do I, the big open locker rooms and showers used for PE and team sports. Claiming a certain gender identity is pretty much the only thing required for a defense in order to do so. I know teen males…this would immediately become the target of dares, taunts, initiations, and just plain rude behavior.
Third, when confronted with claims that the Charlotte ordinance makes bathrooms safer for transgender individuals and preserves their dignity, these people shake their head and ask if placing a trans female teen in a boys’ locker room and shower is really a safer thing to do than having them use the female facilities. I have to admit that I remember this time of my life pretty well and I don’t think that the results would be positive.
IMHO, BOTH the ordinance and HB2 need to be repealed and serious thought needs to be given to resolving this situation in a way that best preserves dignity and safety for all. I don’t have the solution myself, but we’re going to get one, whether it’s good or bad.
I see what you did there!
I can certainly see attempting to enforce the law for a while but after arresting several people in error that the enforcement would decline precipitously. I really think that the majority of arrests on this will be trans-gendered persons attempting to comply with the law.
This is correct. Following corrective surgery, a birth certificate can be amended and a person would be “good to go.”
However, the Charlotte ordinance was specifically intended to allow for simple gender identification. In other words, Joe Sixpack, on a dare from his friends, can simply walk into a girls’ locker room and use as a defense that he “identifies” as a trans female. The bar is pretty low. (“All his buddies confirm that he has always identified as a woman.”)
The ordinance can be over-simplistically summarized as, “Use whichever facilities you feel comfortable with.” You can see why some conservative and religious parents were not too happy with it as written. This is why HB2 was hastily written and passed.
Ok, let’s get this dealt with in a logical way.
I am a genetic male, who has the secondary sex characteristics of being a male, and who’s dress and hair styling would make me seem male. Suppose I have a friend who is a genetic female, but who’s secondary sex characteristics are male, and who dresses and styles his hair as a male traditionally does.
We both walk into a women’s bathroom, and attempt to use it for the intended function of defecation. We are both seen by an officer of the law in North Carolina. We are both arrested for violating the “bathroom law.” (Note at this point that there’s already some issues, since the law has no stated penalties, no enforcement mechanisms at all. Thus, I’m not sure what we are charged with, but assume some crime is alleged.)
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Does the officer of the law have probable cause to arrest us? Maybe. Almost certainly in my case, since, you know, I am actually violating the law. In the case of my friend, possibly, because even if the officer asks my friend to produce identification, that identification may show a gender of male. OR, it may show a gender of female. Some states allow for the birth certificate to be corrected when a person has completed gender re-identification surgery. Some do not.
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At trial, assuming we are arrested, what happens?
a) Can the prosecution make the case we should be convicted on our looks alone? Possibly. All the prosecution would have to do is have us examined by a doctor, who would certify that we both have the secondary sex characteristics of males. That, combined with our appearances at the time of arrest, would probably establish sufficient evidence that we were guilty beyond reasonable doubt (remember, the prosecution doesn’t need to provide evidence of certainty).
b) But shouldn’t the prosecution have to provide the birth certificates? Aren’t you guilty only if you’re using the wrong bathroom as established by the birth certificate? Maybe. Depends upon what, exactly, we’re being prosecuted for. But doubtful, because after all, if we are both mum as to who we are (and have no identification on us), it may be impossible to prosecute us successfully then. More likely, the offense we are going to be charged with is one which can be “proven” without reference to the birth certificate.
c) Can we offer the birth certificate as evidence that establishes that we are not guilty? Well, I can’t, because I’m actually guilty. But my friend, again, might be able to, assuming that the original certificate hasn’t been modified after the sex reassignment surgery. Indeed, one of the criticisms of the “bathroom bill” was that it assumes that transgenders who undergo that surgery will get their birth certificates modified; this is allowed in North Carolina, but NOT allowed in plenty of other states.
IANAL, but I’m going to guess that the usual charge would be “Disorderly Conduct.” Some states may have more specific charges directly related to this type of activity, including (possibly) some statute intended to reduce “peeping.”
A legitimate defense in NC (under HB2) would be that the defendant’s birth certificate shows the appropriate gender for the facility that was used. Therefore, I would expect that the prosecution would introduce it if it favors their case and that the defense would introduce it if it favors their case.
I’m not sure the prosecution could find a copy of my birth certificate. I wasn’t born in North Carolina, and although they may be able to find in their records my place of birth, would another state give Carolina prosecutors a copy of my birth record without my authorization?