What are the penalties for violating NC HB2?

Factual Questions
41

I realize this is GQ, but the law seems to me to be no more than a power struggle vis a vis the state versus local government.

By default, a private business can discriminate to its hearts content. If you own a business, and I walk in wearing West Virginia University apparel, and you think that all West Virginians are podunk, redneck assholes who fuck their own sisters, you can throw me out simply for that reason. It’s unfair, and it’s objectively wrong, but the law says that it is your business and I am free to shop the competition.

The feds and states have made exceptions to this rule for a specific list of things that supersede a private property owner’s rights: race, sex, religion, etc. Those are policy choices and not based upon any constitutional rights possessed by any individual; they are creatures of statute.

So, here comes NC and sees that certain municipalities have decided to make additions to that list (albeit in a limited circumstance related to public restrooms). The state disagrees, reverses it, and enacts an affirmative law saying that local and state government must enact policies only permitting use of restrooms designated by biological sex.

So, the GQ part, the law really does two things: 1) it restores the right of private businesses to retain any policy. It can prohibit or permit the use of certain restrooms by trans-individuals, no matter the local law. This part is a power issue between the state and localities which takes no position on the issue. It also 2) takes a position on the issue with regard to government properties.

I think a person could have a different opinion of each portion of the law. I also believe that the law can cite a laudatory purpose for doing part #2. The local ordinances, by permitting one to simply declare his or her own gender for restroom use purposes fails to protect women against a sexual deviant with a 9 inch hard dick from trolling the woman’s restroom so long as he declares that he self identifies as a woman.

There is nothing wrong with taking a reserved, contemplative, and reasoned position on these issues. Legislators have never been required to subscribe to the latest newsletter from the left wing of the political spectrum and adopt its recommendations wholesale.

42

There are like five or six threads in other forums that are not GQ where I’d love to have that debate with you, Ultravires.

43

So, like, how will you, the police or anyone in the bathroom know he’s packing a penis?

Does he have to show it? To you? To anyone who asks? Under what law can anyone, including a cop, demand to see your junk?

This law will open the door to any man, any time, having access to the ladies room. And no one will be able to do a thing about it because you have mandated ‘men’ into the ladies room! Plus, no one, not you, not the legislators, not the cops, have any idea how to enforce this, when to enforce it, or by what law they can demand to see your junk.

When you get those issues resolved, maybe we can talk. But if you haven’t even thought this through all the way to the enforcement part, no one will take you seriously.

44

I’ve been using men’s rooms my entire life and I’ve never seen another man’s penis in one because I have no interest in looking. Your post makes me think you have an unhealthy obsession with them. On that basis, I’d rather share a bath room with a transgender man than you.

Also, does the person with the particular genitalia you describe so luridly “live all aspects of his life as a woman”? If not, he’s not a woman and he should not use the women’s room.

Left Hand of Dorkness, the Fourth Circuit ruling certainly doesn’t support the parts of the law that prescribe bathroom policies for UNC or public schools. The law does have a severability provision though, meaning that even if the courts strike down the school parts of the law on this basis, other portions will remain in force unless they are separately overruled or repealed.

45

The law doesn’t care about the state of anyone’s genitalia. It does care what is on one’s birth certificate. If you are asking how the police will know what is on a person’s birth certificate, that’s a different question.

As I discuss above, this isn’t a criminal law and it doesn’t appear to me to give the police any enforcement authority. Even if they were expected to enforce it, they would need to know what’s on the person’s birth certificate. Since the law doesn’t require people to carry their birth certificates around or show them upon request, the police would have to find other ways to prove what’s on that person’s birth certificate. This would is a real enforcement challenge.

46

Right, not everyone who’s packing a 9-inch rock-hard dick was born with one.

47

Been mulling on this a while, and have posted in other threads, so I agree that the birth certificate issue is the one causing most of the confusion. And I’ve come to realize that they didn’t really mean “birth certificate.” That is simply code for what they really would like to write into law, which is that a person must use the restroom that corresponds to the gender that Almighty God, who makes no mistakes, made him or her (from the instant of conception, natch).

48

I believe you are correct about what they intended but that is not what they wrote. I’m not an expert and I am not doing a 50-state, 180+ country search on what the standards are in each jurisdiction for a transgender person to get their birth certificate changed everywhere. I will just say that the people who wrote this law probably didn’t understand that birth certificates, genitalia, and gender don’t map up exactly the way they thought they did.

49

It might, I’m not sure. If it got to the point of the police being called I would wager quite a bit that they’ll say “it’s a civil matter” and tell the person to leave at the business owner’s request. The patron could then try to sue if HB2 protects them in such circumstances, I guess.

50

True, but those are all, frankly weak mechanisms for trying to bypass the fact the gender identity and sexual orientation aren’t protected classes under civil rights law. The civil rights statutes offer vastly stronger protections, while it’s good the EEOC under Obama is trying to do something in a political environment where a Republican Congress will never extend civil rights protections legislatively, as administrative/civil agencies they are limited in scope versus the broad ability of the government to vigorously go after violations of the civil rights statutes.

51

Does it elaborate on what “biological sex” means? Because that can get quite confusing and complicated.

52

It defines it thus:

From this PDF of the law’s text.

It passes the buck to whoever filled out the birth certificate, in the blind expectation that it will always be either “male” or “female” and nothing else. This is not true universally, with Germany already recognizing the existence of intersex people with an “indeterminate” option on the birth certificate, and I have every expectation more jurisdictions will follow suit, as acceptance of GLBTQ rights spreads.

This cuts to the heart of what’s wrong with this law: It’s a “Make The Scary Changes Stop” Law. It’s a law which attempts to force society to go back to the way it was. Laws can’t do that: They’re both too strict and too vague. Too strict in that they have to criminalize certain articulable actions such that they’re not facially void for vagueness, and thus can’t criminalize “you know, being that way” or other, similar things which were once just known to be “wrong” by society at large, and they’re too vague in that they have endless room for interpretation and wriggling, as opposed to social mores, which are almost endlessly precise on exactly where some boundaries are, to the point you could write massive tomes on the precise nuances of mealtime etiquette in one specific society.

This law is trying to codify a whole culture’s worth of transphobic fear and hatred into a single five-page document. It’s attempting to save a culture which will soon be a memory, due to simple demographic shifts.

It’s a shameful memory. Let it burn. We will destroy that past and build the future with its ruins.

53

Solution: require all trans people to be fitted with a catheter and leg bag. They’d all be forced to undergo colostomies and be fitted with another bag. This one for poop. No need to pee or poop in any restroom, you wear your own portable toilet.

Surely this is a win/win/win solution, no? Trans people dont fear violence and maybe even develop a more independent spirit.

Non-trans folk (and their kids, why not more concern for these innocent angels?) wouldnt be forced to endure torture comparable to waterboading by being in the same room as the freaks. No possible cross-contamination, as trans cooties are only transmited via touch or breathing the same air in an enclosed space.

And the businesses that previously had to endure these creepy-crazies in there restrooms will see a significant reduction in both customer complaints and calls to the police.

54

Wouldn’t it be a simpler solution that people who don’t want to share the rest room with transgender people (or minorities, or immigrants, or disabled people) take this step themselves? Nothing stops them from doing it today and if it’s such a perfect solution, it should be perfect for you.

I’m much more afraid of violence in public rest rooms perpetrated by transphobic people, racists, and xenophobes than I am about violence perpetrated by transgender people.

One small study in Washington, DC (http://thinkprogress.org/lgbt/2013/06/26/2216781/transgender-bathroom-study/) found that 9 percent of transgender respondents had been physically assaulted for using a public bathroom, “including being forcibly removed from the restroom, hit or kicked, intimidated or cornered, or slapped; one respondent reported being sexually assaulted.” Over 2/3 were harassed in ways that didn’t rise to physical assault. Other studies show the same general pattern. Transgender people who just want to relieve themselves when they might be out of the house get harassed, beat or raped for it. If I faced that type of harassment for using public rest rooms, I don’t know how I could live my life.

There are no documented cases of violence by transgender people using public rest rooms. (Statistics Show Exactly How Many Times Trans People Have Attacked You in Bathrooms).

It seems the greatest risk in letting people use the bathroom of their choice is that a transgender person will be attacked by transphobes, not that transgender people will do anything other than use the plumbing and go on about their lives.