In an eleven-hour emergency session on March 23, the North Carolina General Assembly passed the first statewide “bathroom bill” in the nation. The law, known as HB 2, or the Public Facilities Privacy and Security Act, requires that a person’s biological sex corresponds with the gendered public restroom they are permitted to use. This effectively prohibits transgender and gender nonconforming people from using public restrooms that match their gender identity. The anti-transgender provisions of the law have been widely reported, and the New York Times editorial board condemns HB 2 as “appalling, unconstitutional” legislation.
The “emergency” that prompted the session was the February 22 passage of a transgender-inclusive antidiscrimination bill in the city of Charlotte. North Carolina Governor Pat McCrory wrote on Twitter that he “signed bipartisan legislation to stop the breach of basic privacy and etiquette, [and] ensure privacy in bathrooms and locker rooms.” But the law invades the privacy it purports to protect. Rooted in the specter of men masquerading as women to enter and commit violent crime in women’s bathrooms, it instantiates surveillance over the genitalia of anyone using public restrooms who is not stereotypically masculine or feminine. Furthermore, the measure (which is part of broader legislation dealing with the relationship of local and state laws) bars local policy-makers from enacting municipal antidiscrimination laws that conflict with these new state-level restrictions.
HB 2 should incite the worry, and the anger, of bioethicists on several fronts. It is unclear how transgender people could even comply with the letter of the law, let alone its spirit. When transgender men who are read as men – but whose birth certificates say “female”–- are compelled to use the women’s restroom, this creates precisely the “problem,”- i.e., the idea of men invading a women’s only space, that the law purports to protect against. The law’s defenders have invented an imaginary threat to shore up support for the legislation, insisting that women are endangered if transgender women, who are routinely misgendered as “men” in this rhetoric, are allowed to share these spaces. While a 2013 survey by the Williams Institute of UCLA School of Law found that “roughly 70% of trans people have reported being denied entrance, assaulted or harassed while trying to use a restroom,” there is no evidence of violence perpetrated by transgender people in restrooms.
In fact, it is transgender women who are at the greatest risk of violence under this new law. And for those people whose gender is not precisely binary – transgender people who don’t want to be or aren’t able to be consistently read as male or female, as well as gender-nonconforming men and women – this law enacts a harm without providing a protection. These are people who are already often looked at mistrustfully when they use the bathroom, who are asked if they belong, regardless of what restroom they are using. “Bathroom bills” do not prohibit these people from using the restroom. But a substantial practical effect of them is to encourage – require, even – interrogation of their gender, which is a practice that should be quelled. This law transforms a “breach of basic privacy and etiquette” – not the one that Governor McCrory claims to be preventing, but the one that actually happens – from harmful individual actions into legislative mandate.
For bioethicists, this law raises important questions about the relevance of gender and personal health information to the state. HB 2 states that “Public agencies shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex,” and defines biological sex as “The physical condition of being male or female, which is stated on a person’s birth certificate.” It presupposes that someone will enforce this law, presumably using information from a birth certificate as verification of gender. Will it be acceptable to produce this after relieving one’s self, or will such a document be required for entry? Will a driver’s license suffice, or will transgender citizens need to start carrying their birth certificates in their wallets? Will paranoid parents be empowered to confirm the genitalia of their fellow PTA meeting attendees?
What are the ethical consequences of the state’s right to determine the gender of its citizens?
These are not hypothetical questions. “Biological gender” in the North Carolina statute is determined based on a person’s birth certificate. North Carolina allows changes to gender markers on birth certificates if a person has undergone surgical gender confirmation. Therefore, North Carolina already has laws in place that govern a person’s legal gender, and HB 2 is subject to the provisions of those laws. Consequently, HB 2 solidifies relationship between legal rights, lived experience, and medical interventions into gender. But should surgery – personal health information – be a matter of state record, such that access to public services can be contingent on it? Transgender people are going to have to use bathrooms, and the ones who can do so legally and safely in a public restroom are limited by this law to those whose birth certificates match their gender presentation. Since the only way to achieve that is through expensive surgical means, this policy, in effect, requires surgical and legal intervention in exchange for access to public services. It is important to note, as well, that this law also homogenizes the minimum wage across the state, preventing municipalities from raising it above $7.25. This at the very least has the potential to make the health interventions the state now requires even less accessible to those people who would need them.
This law has prompted a national conversation about of a series of applied and interdisciplinary ethical questions, as evidenced by both local and national efforts to repeal it. Restrooms have long been uncomfortable and dangerous spaces for transgender and gender-nonconforming people, especially if they are not read as discernibly male or female. But in addition to, or perhaps because of, the threat of violence in bathrooms, some transgender people do long-term damage to their bodies by avoiding gendered restrooms and being unable to find “safe” or gender-neutral ones. The question of how to best ensure access to safe public restroom facilities was already an important infrastructural concern for transgender people and their allies. But “bathroom bills” approach the issue of safe bathrooms for all people by further limiting access for transgender people, rather than ensuring it for all.
The swift and forceful condemnation of these bills by transgender people and their allies highlights not only the need for bathroom access, but the fact that it has never been a guarantee for transgender people. Bioethicists should take up this issue, connecting it with related questions of access to public facilities, the ethical considerations of limiting that access, and the feasibility of enacting meaningful solutions in public spaces constrained by taxpayer dollars. Most importantly, these conversations must center around the health and safety of all, and not attempt to implement solutions that further harm transgender and gender nonconforming people.
Elizabeth Dietz is a project manager and research assistant at The Hastings Center.