Tired and Cranky, that’s a fine damn post. Thank you!
You are welcome but let me apologize for the non-GQ portions of that post. I try to be good but I struggle withremaining silent in the face of injustice.
Can’t speak to mod preference, but for myself I’m fine with a bit of opining when it’s accompanied by so much analysis. I’m assuming your analysis is on-point–if someone else comes in and shows that you’re totally off-base in what you’re saying, I’m gonna retract my thanks :).
My reading of the law is that it is not aimed at people but rather governments. It is designed to prevent a school board, or public agency to make its own rules about who can use which restroom.
Because of this there is no penalty in this law for individuals who go in the wrong bathroom. If a person is found in a bathroom that does not match their sex then they could be prosecuted for trespass. In your scenario Mary could be arrested for trespassing. I don’t think the guard or guard’s boss has any criminal liability but they could be administratively punished for not doing their jobs correctly.
Can you cite your “trespass” claim? I’m not clear on where that’s contained in state law; that’s part of what I’m asking.
Right, this law really isn’t about arresting people or the “individual” cases. It’s about:
a) Making public authorities in North Carolina that have bathroom facilities (the real target here are schools, an agency regulating junkyards would be expected comply only in regard to their bathroom facilities in whatever buildings that agency owns/controls, i.e. their agency offices) mandate that people use the labeled bathroom that matches their birth certificate
b) Quashing local laws like Charlotte’s that prohibit businesses from discriminating on the basis of gender identity and sexual orientation–a lot of cities across the country make sexual orientation or gender identity a form of protected class, this is necessary because Federal law doesn’t establish either as a protected class.
In 1990 in North Carolina if a business owner felt someone was using their restroom facilities in a way they did not agree with, they had a general authority as business owners to kick that person out. They don’t have to post policies or do elaborate investigations. The privilege to decide who gets to do what inside a private business is fairly broad as long as you don’t violate things like public health codes, safety codes, Federal or local civil rights law or etc. That may sound like a long list of caveats, but most of the time, in most situations that happen in the real world, business owners can kick people out. If the person refuses to leave police can be called and will remove the person, and likely charge them with trespass.
In 2016, this is basically still the situation. This law doesn’t require the business owner to necessarily “get it right”, nor does it require the business owner scan a person’s birth certificate or etc. The most realistic scenario is a cisgendered woman complains that someone she believes is a man is in the restroom, the business owner then makes a decision. Another realistic scenario is a member of staff or the owner observes someone they believe to be a man enter the women’s restroom and they again, have to make a decision. A lot of them will take the stance that as long as that person is just using the facilities, not a threat to anyone, or etc, to let them do their business and leave them alone.
There’s a lot of variety in how transgendered people are treated in restrooms across the country. A lot of more progressive places, or more progressive large companies, even in the absence of laws, will take various steps to protect their ability to use restrooms in peace. In less progressive places and with less progressive businesses, the opposite is true. I don’t have any sort of survey data nationwide, but it’s probably safe to assume places like say, Seattle or San Francisco the standard is a lot different than Alabama or Mississippi.
Since the main intent of this law is to “protect” business owners from local regulations it properly isn’t seen as criminal law, and isn’t criminal law. Rules for business owners ejecting customers and calling the police to remove those who refuse to leave are thus what they have always been–since long before 2016 in North Carolina. Basically refusal to leave is trespassing, and after a point when you’ve been told and continue to refuse to leave generally becomes criminal trespass. Although in the real world most of the time people don’t bother pressing charges for criminal trespass, once the police have removed the person they consider it over.
The practical answer is nothing will happen because the NC Attorney General, Roy Cooper (who just happens to be a Democrat running for Governor) won’t be defending the law anyway.
But doesn’t the NC law actually change that? As I understand it, if a woman complains about someone with wide shoulders, a flat chest, and a beard in the woman’s room, and it turns out that that bearded person’s birth certificate says “female”, then HB2 would actually make it such that the business owner can’t do anything about it.
Agreed. I didn’t mean to suggest that the junk yard regulators could impose rules on how the junk yards run their rest rooms.
Quashing local gender identity and sexual orientation protections is definitely a significant part of the law and I didn’t comment on this. The second part isn’t so clear cut. Federal administrative agencies and some federal courts are finding that prohibitions on sex discrimination do prohibit discrimination on the basis of sexual orientation or gender expression. In other contexts, the federal Equal Employment Opportunity Commission has found that discrimination against gay people or transgender people is nothing more than sex discrimination under Title VII (Anti-gay workplace bias barred under existing law: EEOC). The U.S. Department of Education’s Office of Civil Rights has also found that discrimination against transgender students is sex discrimination under Title IX. (https://www.washingtonpost.com/news/education/wp/2015/12/03/under-federal-pressure-illinois-school-district-allows-transgender-student-to-use-locker-room/).
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But doesn’t the NC law actually change that? As I understand it, if a woman complains about someone with wide shoulders, a flat chest, and a beard in the woman’s room, and it turns out that that bearded person’s birth certificate says “female”, then HB2 would actually make it such that the business owner can’t do anything about it.
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It depends on how the state interprets its new sex discrimination protections. The bill certainly wasn’t intended to protect transgender people but it prohibits discrimination on the basis of sex. If the state interprets sex discrimination the way that current federal regulators do, the bill might help to protect transgender residents aside from their choice of bath rooms.
Also, I’d like to correct something I said above. I wrongly said that transgender people would have to sue to protect their rights under the law. In fact, the law does not create any private rights of action so people cannot sue under the law. Instead, the law gives jurisdiction to North Carolina’s Human Relations Commission. North Carolina’s governor appoints 18 of the 22 members of the Commission. I speculate that this governor’s appointees are unlikely to be supportive of claims of gender discrimination by transgender people.
The trespassing part is not in the law. That is just what could be charged if a man was found in the girls locker room. Going where you are not allowed is trespass. This law just clarifies that local governments and state agencies can not make their own decisions as to who is allowed and who is not.
That’s not what the law says, though: it says:
IOW, it tells public agencies what they must do; it doesn’t tell them what they’re forbidden from doing. This is a crucial difference. If a public agency doesn’t make such a designation, as in my hypothetical, have the characteristics of trespass as defined by NC law been met?
If the signs for a restroom remain “men” and “women,” have the criteria for trespass been met?
Here they are, FTR:
Note that the “trespasser” (i.e., the trans woman in the women’s room) is presumably allowed on the general premises; if she’s not, the question is moot. Does a sign that says “women” “demonstrate clearly an intent to keep out” transwomen?
I can’t imagine that it does.
The Fourth Circuit Court of Appeals just ruled that Title IX bars schools that accept U.S. government funds from discriminating against transgender students in their use of bathrooms. the Circuit applied the Department of Education’s interpretation of Title IX that says, “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf
North Carolina is in the same circuit so this precedent would apply to North Carolina schools.
going to love the debate over exactly what ‘gender identity’ means in a legal document - hoping someone can find how thats defined elsewhere in the system.
I could see that definition going both ways…
simster, you don’t have to wait; read the opinion and you will see.
The basic answer is that sex means either male or female under the statute, but whether a person is male or female doesn’t depend on the person’s genitalia or birth certificate. The court cites to definitions of sex including that it is “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender," and “[o]ne’s identity as either female or male” and “‘the morphological, physiological, and behavioral peculiarities’—included in the term ‘sex.’”
The opinion says that the Department of Education resolved the ambiguity in the statute’s use of the term “sex” by saying that a transgender student’s sex is generally determined by reference to the student’s gender identity. So what matters is whether the transgender student considers him or herself to be male or female. If you hold yourself out as male and people know you as male, the court believes you are male under the statute. I won’t second guess you. No one else should either.
Thank you.
Is the part I underlined as problematic as I think it is? That is, if I recently transitioned to male, but my jerk of a colleague insists on calling me by my previous, female name, can he therefore discriminate against me? If I don’t successfully pass, can people choose to discriminate against me?
It’s based on the transgender person’s identity. Although the opinion isn’t explicit, I would understand this to mean what the transgender person thinks of himself or herself as. In relevant part, a dictionary I have handy defines “identity” as “the distinguishing characteristic or personality of an individual” and “the relation established by psychological identification.”
But the courts can’t read your mind so I expect they will look for evidence that you express your gender identity to others. That is, if you are a transgender male, you should tell other people that you are male, ask them to use male pronouns, perhaps change your name to a male name, and perhaps dress and look more “male.” Then other people will know you as male. The opinion above certainly looked at how “G.G.” was diagnosed with gender dysphoria, underwent hormone therapy, legally selected a male name, “lives all aspects of his life as a male,” and told school officials he was male. What he didn’t do was just show up to school one day and demand access to the boys’ locker room.
That’s what I meant when I said “other people know you as male.” For what it’s worth, your hypothetical co-worker knows you as male, he is just a jackass who is choosing to harass you based on having previously known you as female. In my opinion, his obstinacy can’t make your gender identity male any more than he can make you French by calling you a “frog.”
And, although this is not an entirely settled area of law, I would suggest that a workplace that tolerated your hypothetical coworker’s harassment of you could be enabling sex discrimination under a hostile workplace environment. Again, the EEOC views discrimination against transgender people as sex discrimination.
When your state is no longer tolerable or being too draconian towards you it is time to move. If more people did this there would be a lot less bullshit laws on the books. Southern states are going to seriously regret doing things like this in 10 years when they have no high-tech workers or have to pay extreme premiums for those who, generally speaking, don’t like to live around and won’t tolerate hate or willful ignorance.
Regarding bullshit laws, this is not gender-related but it definitely had the same outcome as that would for me. Ohio is insane with their insurance letters. I didn’t have insurance once as a young man and got in trouble then 15 years later my policy had lapsed by 3 days and this was unknown to me until I got in trouble for it again. So at this point the law says that if it ever happens again, ever (they totally don’t care why) I permanently lose my license and get a massive suspension preventing me from getting one elsewhere.
So goodbye forver, Ohio! Their loss. The west is so much better anyway. The jobs pay more and the people are less wound up.
Don’t be afraid to take control of your own destiny. Tell those who love you and care about you why you have to leave and be very clear about it. Make it hurt.
Thanks again, Tired and Cranky. It’s looking to me very much like this 4th Circuit ruling is going to render my question moot.
Well, I dunno. The law you describe basically says that if you persistently fail to keep your motor insurance current we may have to ban you from driving. I can kind of see the policy arguments in favour of that law.
Regardless, your position is basically that the convenience of being able to let your motor insurance lapse without risking a driving ban is worth more to you than the personal associations and relationships you have in the community you live in right now. Fine; that’s obviously the case for you, but for most people at most times it isn’t the case. I’m not going to quit my job, persuade my wife to do the same, leave my friends, move hundreds or thousands of kilometres from my extended family, take my kids out of their schools and away from their friends, etc, in order to avoid taking responsiblity for renewing my insurance when it falls due. And I think there are probably more people in my situation than there are in yours.
For most people who have no other reason for moving, the laws are going to have to be seriously oppressive to get them to move to another jurisdiction.