public facilities in correspondence to their chosen gender identities.
The Public Facilities Privacy and Security Act, now being referred to as “The Bathroom Bill,” goes much farther than simply determining who is allowed to use which restroom facilities; HB2 deals directly with authority between state and local governments.
On the front end of the legislation, HB2 is a statewide policy banning individuals from using public bathroom facilities that do not correspond to their biological sex. The language of the bill defines one’s biological sex as being that which is listed on the person’s birth certificate.
However, moving beyond repealing the Charlotte ordinance, HB2 makes North Carolina’s law on antidiscrimination, which covers race, religion, national origin, color, age, biological sex and handicaps the final word on the matter.
This means that cities and local governments can no longer expand “employment” or “public accommodations” protections to others, such as on the basis of sexual orientation or gender identity.
While the debate over the rights of transgender individuals may be a particularly emotional one, the specifics regarding the application of HB2 at an institutional level have exposed a potential legislative failure: the inclusion of a clear enforcement mechanism.
The University of North Carolina has announced that it will abide by the state’s decision, noting however that the most daunting issue surrounding HB2 is that the legislation lacks clear guidelines about how its policies should be implemented, leaving those decisions up to universities and school districts.
Is There Any Federal Guidance?
In December 2014, the Obama Administration released a 34-page memo that clarified its official stance on Title IX protections, which, in the Administration’s view, prohibits discrimination on the basis of sex, race, and national origin in education for transgender students. The memo stated that under Title IX of the Education Amendments of 1972, schools must “treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”
Universities and public institutions that receive federal and state funding now find themselves in an awkward position. Should they be following the federal position or should they be following state law?
Frustratingly, the federal position represents little more than guidance from the Department of Education and the Office for Civil Rights, with no clear, specific law in place and no existing precedent which universities and school districts can draw upon when seeking guidelines for enforcing HB2.
The ongoing debate over transgender rights is now an issue of ideals vs. application. As one attorney for the American Civil Liberties Union stated, “It’s not as if there will now be ender inspectors at every door. There’s simply no enforcement mechanism.”
What Do You Think?
Did North Carolina go too far with this law? Regardless of whether you agree with the law, it’s still in effect—so how are public institutions supposed to comply with it?