North Carolina’s bathroom legislation makes state an outlier in nation

WASHINGTON – North Carolina’s newest state law doesn’t just extinguish the city of Charlotte’s attempt to ban unequal treatment of gay and transgender people, it also takes away the ability for any other city or county in the state to pass general anti-discrimination laws protecting a range of people.

That makes North Carolina’s “bathroom” legislation special nationally: Only two other states, Arkansas and Tennessee, have gone so far as to block local officials from deciding it’s OK for transgender people to choose which bathroom to use.

The rest of the states either have taken no action to prohibit such legislation or, in the case of 18 and the District of Columbia, have acted affirmatively to enable people to choose the men’s or women’s restroom, depending on their gender identity, not the sex they were born with.

In addition, an estimated 200 cities, many in states without a statewide discrimination ban, have passed anti-discrimination ordinances to protect gay, lesbian, bisexual and transgender people.

At issue isn’t just who can use which bathroom – though that’s the part of the debate that gets the most attention – but whether city and county leaders should have the authority to weigh that issue for themselves and adopt anti-discrimination ordinances on their own.

Similar bathroom-choice debates – and the related issue of whether gay, lesbian and transgender people should be covered by anti-discrimination clauses – have entangled many state legislatures and governors over recent years.

But North Carolina’s legislative treatment was unique, experts say – House Bill 2 was unveiled, voted on and signed by Gov. Pat McCrory in a matter of hours, with hardly any debate, despite concerns it has potential consequences for all workers unrelated to their sexual orientation and gender identity.

Jennifer Pizer, senior counsel for Lambda Legal, a nonprofit legal organization advocating for lesbian, gay, bisexual and transgender people, called the law and the speed in which it was passed a “mean muscle-flexing” effort by state lawmakers playing on unjustified fears that transgender people could become sexual predators in bathrooms.

“It’s purely (based on) imagined potential problems. It’s almost like a form of mass hysteria that can take off, especially during an election season,” she said.

Pizer estimated that there have been 200 or more bills introduced in state legislatures over the past year designed to limit LGBT rights in a range of ways. Most, she said, were painted as measures to grant religious exemptions for people who do not want to serve gay and transgender customers.

Legal challenges to such laws have had mixed success, Pizer said.

“Sometimes state legislatures pass laws that are grossly unconstitutional and we are able to succeed in court with judgments striking them down. But that’s not always the case,” she said, adding that a legal challenge is possible in North Carolina but she can’t predict the outcome.

Without federal protections, the result is a patchwork of laws across the nation governing the most basic physical need.