This law is a terrible, backward public policy. It’s a a"solution" in search of a problem and I am offended by it. Furthermore, I don’t think the people who adopted this law really know what it does. Media coverage also differs significantly from what the law actually says.
I relied on this copy of the bill (PDF) http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf, but I’m not an expert on North Carolina law, so please take my analysis with a grain of salt. I tried to qualify particular gaps in my understanding below but I may not have done so everywhere. I am also not addressing federal constitutional or federal law preemption arguments that may apply to facets of the legislation.
The bill generally requires “local boards of education” and “public agencies” (including the University of North Carolina) to adopt policies that require transgender people to use the bathroom associated with the sex on their birth certificate. However, I don’t believe this law is self-executing. That is, it doesn’t change anything until the local school boards and the public agencies actually change their policies. Any analysis of the law’s effects must wait until these agencies adopt policies. One public agency might have a policy that says no one can use the bathroom unless they present a birth certificate to a hall monitor. Another agency might have a policy that just tells a transgender person to use their birth certificate bathroom but doesn’t require any evidence. One might have a penalty that says the person violating the provision is fines $100 and another might have a policy that bans the violator from ever setting foot in the agency’s buildings again. Until we see the policies, we don’t know how they work.
It is also possible that some public agencies may lack the statutory authority to regulate the bathroom use of the transgender people who might use their facilities. For example, an agency regulating junk yards may only have authority to regulate and fine junk yard operators. If a transgender person isn’t a junk yard operator, the agency might not have the authority to make its bathroom policies binding on the transgender person using its bathroom. It is also possible that state courts will interpret the statute as giving the agencies the authority they need to adopt policies that are binding on the transgender people. The law doesn’t specify penalties, so there is a question of state law whether, for example, the agency regulating weights and measures will have the authority to specify a penalty of 50 years in prison for a violation (I’m being hyperbolic here, but if courts read extra authority into the law, they will also have to read in some limits for these agencies). This is part of the civil code, so perhaps only civil penalties, like fines, could apply.
This is not a criminal law and I don’t know if the police would have any authority to enforce it. Depending on the particular policies public that agencies adopt, police might find their enforcement authority elsewhere. For example, public agencies might adopt policies that declare violators to be trespassers and the police might have authority to enforce the law against trespassing. However, this would be hard for them to do. It would generally require the facts and circumstances within the officer’s knowledge to be sufficient to warrant a belief that a crime has been committed. Unless the officer knows what’s on that person’s birth certificate, I don’t think an officer could arrest anyone under this law and the related policies. Still, it’s ripe for abuse and likely to lead to harassment of suspected transgender people.
Another provision of the law gives public accommodations (for example, hotels, restaurants, and stores) the right, but not the obligation, to discriminate against transgender people in their bathroom use. It says that a public accommodation can’t discriminate “because of race, religion, color, national origin, or biological sex, provided that designating multiple or single occupancy bathrooms or changing facilities according to biological sex…shall not be deemed to constitute discrimination. [emphasis added]” So unless public accommodations choose to discriminate against transgender people, this part of the law has no effect.
The open question then is, what do businesses have to do if they want to discriminate against transgender people? My personal feeling is that “Men” and “Women” signs that pre-date the law shouldn’t automatically be interpreted as expressing the business’s intent to discriminate against transgender people. So, in my opinion, the businesses will have to make the discriminatory intent of their Men’s and Women’s signs clear to transgender people. Perhaps they could hang additional signs up outside their restrooms to announce their intention to discriminate against transgender people but I doubt they will be eager to invite that kind of attention. More likely, they will just choose to police based on the appearance of their customers and the ignorance of their employees and customers. This will cause transgender people to face needless humiliating confrontations. No one needs these fights, but North Carolina seems to be seeking them out.
Another issue is that this law prohibits sex discrimination except in the case of bathroom policing of transgender people. Stores that choose to discriminate on an ad hoc basis like I describe above better pick on the correct targets. For example, assume a transgender man (that is, a person born with female genitalia but who identifies as a man) is undergoing androgen therapy, has a beard and is very muscular, and needs to use the bathroom. To be safe, he uses the women’s room, because that’s what his birth certificate says. Under the law, stores can either restrict him to the women’s room or it can allow him to use either. If the employees of that store confront him and bar him from the women’s room, they are outside the scope of the discrimination carve-out this law creates. The store will have discriminated against him on the basis of his sex, and not in a way that is bathroom discrimination protected by this law. It isn’t his obligation to make his gender presentation match the biological sex on his birth certificate and the non-discrimination provision doesn’t create a special carve out for this store’s particular form of back-assedness. The store employee isn’t authorized by this statute to deny his use of the women’s room. Unfortunately, he would need to sue in state court to enforce these state non-discrimination rights. He would face judges elected by the same people who elected the legislators who passed the stupid law and juries drawn from that electorate. I am guessing they would not be sympathetic audience to a transgender man’s plight.
My biggest issue concern with this law is that it will embolden vigilantes to enforce their misconception of the law based on bad news reporting. We don’t need to give bigots new reasons to take their anger out on transgender people.