The term ‘transgender’ is contemporary in its form. A look at history shows that individuals who were transgender or appeared to be so from a vantage point never had a conception of a life labeled through gender. From earlier days of the US colonies, a set of established gender systems prevent and contain what these people of the past viewed as transgressions and unfortunately, this has morphed to become a vivid part of life in the current state of affairs in America. The earliest recorded transgender in history involved a servant in the colony of Virginia. The year was 1620 and the person who adopted the names Thomas and Thomasine Hall claimed to be both man and woman (Beemyn, 2014). At various times he/she wore men and women clothing and adopted their traditional roles. These occurrences permeated to the point that the locals were unable to determine his/her ‘true’ gender despite the fact that the subject underwent various physical examinations. Unsure whether to punish Thomas/Thomasine the locals resolved to take him to the court at Jamestown and let the law resolve the issue. In a resolution in 1629, the court affirmed that he/she was bi-gendered or intersexed as is currently termed, effectively; he/she was permitted to wear both a man’s and woman’s clothing.
The experience of Thomas/Thomasine affirmed and demonstrated the innate diversity of gender and gender expression over time. Societies look at gender and its interpretation as an entity that profoundly affects the social structures and order in multiple ways. Not only is the society in this quagmire of sorts, but also the legal system. Legal authorities have often dismissed or ignored the numerous instances of a gender expression that was non-normative particularly in cases whereby an individual was born female and lived as men (Beemyn, 2014). The legal authorities would regard them simply as those seeking male privilege in a patriarchal society especially throughout history. To understand the House Bill 2 law in North Carolina and its effect on the transgender community, one must have a clear understanding of the word transgender. In understanding transgender, the law becomes clear and concise, revealing its intent and the overall repercussion of its implementation and how it affects pertinent human rights and freedoms.
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In defining gender related issues and terms, one has to observe sensitivity to its multidimensional nature. The process of indulging in the transgender and queer community is one of defining, redefining and self-defining, which begs the need for clarity and preciseness. As a result, the overall definition is by no means monolithic or one that is universally accepted by both those who are of the ‘transgender’ community and those who are not. Therefore, for the purpose of this paper, the term transgender incorporates all people who come out as gender variant, individuals with a disorder in Gender Identity and people seen as being gender abnormal beyond the usual understanding of sex and gender (Lloyd, 2013). According to the House Bill 2, its definition of a person’s sex is the biophysical state of being female or male as is in the birth certificate. This definition effectively undermines most transgender scholars’ definition of the term, which incorporates masculine females and female males, cross-dresses, transsexual men, ‘gender-benders’ among others. On one hand, such an exclusion prohibits perverts and people who are just there to take advantage of the situation to fulfil their carnal desires, and on the other hand, the exclusion acts as a restriction that prevents freedom of expression and identity.
On March 23, 2016, the general assembly of North Carolina convened a special session that took place only for one day. In this special session, the passing of one single bill took place. This bill happened to be dubbed as the bill that prevents local governments from allowing nondiscrimination ordinances. A majority that constituted Republican representatives did the writing of this bill behind closed doors. This shows the hurried nature of the formulation of this bill and the fact that its creation was in privacy does little to quench the tongues of critics and analyzers alike. The bill’s completion happened in a short while. Allowance of public commentaries happened at around 10:30 and the people had only 30 minutes to comment, that is per house and senate committee and only those addressing the bill. Afterwards, Governor Pat McCory signed it into law within four hours of receiving the legislation (Holleman, 2017). Various people argue that the bill did not undergo a democratic process in its formulation, deliberation and implementation into law.
This bill covers several policies that explicitly require anti-LGBT discrimination or prevent enforcing protection against it. This, in turn, limits local government authority. Briefly, the law simply puts forth requirements that do not augur well with the LGBT community. For example, it states that all public restrooms should be one-sexed and restricted based on the person’s proper sex. Furthermore, it applies the preemption to the laws pertaining to nondiscrimination in public restrooms and rights of employees, which are the minimum pay, welfares and overtime. In simple terms, this state’s law supersedes the people’s law that ensures the protection of their individual complex cases. Also in the law, is the fact that individuals are exempted from bringing any civil suit based on the state’s employment and public accommodation ‘nondiscrimination’ protection.
The General Assembly passed this law and made it a legislation in one-night generating controversy since it goes to narrow and somewhat curb the influence of the Charlotte ordinance. By doing this, it nullified the local ordinances in the state that ensured protection to people who are transgender and use restrooms that concur with the identity of their gender (Gordon, Price, & Peralta, 2017). This new law has gone further to undermine longstanding state laws that regulated discrimination at the workplace and use of communal restrooms, standards of wages and other issues related to finances and business. With this HB2 law commonly perceived as the restroom bill for Charlotte, it is unlawful for cities to draw from and implement the laws of the state. Before this law, cities such as Charlotte, Durham, Chapel Hill and Raleigh used the anti-discriminatory law on a daily basis, now with the advent of the HB2, things have turned for the worse for pro-transgender enthusiasts and those who are involved.
The new law in North Carolina has a broad definition of people in different categories protected against and affected by discrimination. These classes include religion, national heritage, race, age and sex as recorded in a birth certificate. This law effectively strips the protections and rights of its citizens who do not take steps to alter their birth certificate genders and who use a public restroom that is gender specific or that which they identify with. This bill has caused an uproar in North Carolina and quite a number of concerned individuals expressing their views of the same causing varied changes and shifts in the political, social and economic impact of the region. Such critics in Charlotte cited privacy concerns presenting their arguments that ‘social engineering’ allowed people born as biological males to access restrooms meant for females.
Inasmuch as Governor McCory said that the new law would not affect private businesses or even universities, this bill has significantly affected the economic landscape of North Carolina. Ultimately, an intense pushback has ensued leading to economically undesirable factors for the state at large. In July 2016, the NBA declared it would change the venue for its All-Stars Game from the City of Charlotte in the coming year. This made the city incur an estimated $100million loss (Sears, & Mallory, 2017). This decision followed cancellations of entertainment events and business expansion in protest of the enactment of the HB2 law. As it reached September, reprisals increased. On September 12, following the NBA, the NCAA relocated several championships planned to be played in North Carolina that same year as well as the extremely widespread men’s tournament. After only a few hours, Atlantic Coast Reference also pulled out and moved the conference’s football championship from Charlotte, in the protest of the law.
Finally, in the elections of November, this law played a chief decisive role in governor McCory’s reelection bid. As the courts were deliberating on whether or not HB2 discriminates, the supporters of the law dug in and set the stage for the elections. However, McCory lost his bid for reelections, and to the observers, this reaffirmed the easily evident reason for his loss as the fact that he supported the HB2 bill (Lacour, 2017). All these events indicated the irrelevance of the bill itself notwithstanding its discriminatory nature. It was clearly evident that the actions taken by the North Carolina General Assembly was misleading and happened in an attempt to cover up the discrimination that plagued the bill. Another deduction on how the law passed was the fact that the legislators misrepresented their facts to the public when they stated the legislation’s mandate was its need to end sexual assault and abuse and from taking place in restrooms for the public. However, the fact is that the legislation discriminated and prevented cities and counties from placing proper protections for its citizens (Craver, 2017).
Following a disclosure move by Republican Governor Pat McCory, on December 19, 2016, he called for a consideration of repeal to the House Bill 2 in a special session convened on December 21 (Gordon, Price, & Peralta, 2017). This came hours after the City Council of Charlotte voted an overwhelming 10-0 in support of the decision to retract the LDBT ordinance that allowed and promoted HB2 enactment and implementation. However, during the special seating, the North Carolina Senate voted a revoke of the HB2 after a long day of progressively bigoted acrimony that saw the Republicans who were conservative aggravated against the Democrats they had so much distrusted. At the end of the session, the State House adjourned without voting for repeal. This bill dented the economic fabric of the state of North Carolina to the point that millions of dollars in jobs, local tourism and sports events were lost, yet the legislators were unable to reach a unanimous consensus concerning the future of the state in regards to this bill (Johnson, 2017). Insofar as this is the case, at least five lawsuits have been filed against the law. Rights groups such as Equality North Carolina, the American Civil Liberties Union ACLU and others filed suits within days of the HB2 enactment. In addition, the U.S. Justice Department followed by first, warning of the impending deductions in funds meant for colleges, schools and other issues. With these current events, it is now all in the hands of the court. Federal documents indicate lawsuits such as the one presented by the ACLU will take place in the summer of 2017.
Currently, the most pressing issue that the HB2 law affects is the one of schools. In North Carolina, students are required to use restrooms and lockers in public schools based on their gender identities as it appears on the birth certificate. According to the federal government, such a rule or law affects and violates the Civil Rights Act Title IX. In this act, there is the clear stipulation that prohibits discriminatory actions in schools. Furthermore, this Act comprises of sexual distinctiveness and orientation under the overall section on sexual discrimination. Nevertheless, McCory and his supporters blame the U.S. Department of Education, Department of Justice and even the federal representatives of interpreting discrimination laws in a radical way for them to take account of individuals of the LGBT status. What further complicates this issue is the fact that the Fourth Circuit Court of Appeal ruled that federal agencies were pursuant within their spheres through the inclusion of LGBT rights in the law. In the end, all this back and forth with this new HB2 law leaves local schools, universities and colleges caught in a quagmire with billions of potential federal education dollars at stake.
This law needs serious consideration and review since it collides with other laws supreme to it such as the federal law on Civil Rights. In addition, the fact that the whole process was not democratic in nature indicates that the entire bill is in effect unendorsed. This is evident from the fact that in the North Carolina Senate House the vote was a mere 32-0 after Democrats walked out of the house protesting of their non-inclusion in the enactment process. Besides, clear and open factors such as the significantly huge court cases, reduced economic development and tourism among others are a clear indication of the devastating effects of the bill to the economic output of the State of North Carolina. Ultimately, the people have to rise and start a revolution to repeal this bill otherwise the rights that matter to the significant minorities will become a thing of the past.
Beemyn, G. (2014). Transgender History in the United States. In Trans Bodies, Trans Selves (1st ed., pp. 1-25). Oxford University Press.
Craver, R. (2017). HB2 likely reduced state's position in national ranking. Winston-Salem Journal, 1-3.
Gordon, M., Price, M., & Peralta, K. (2017). Understanding HB2: North Carolina’s newest law solidifies state’s role in defining discrimination. charlotteobserver. Retrieved 10 April 2017, from http://www.charlotteobserver.com/news/politics-government/article68401147.html
Holleman, C. (2017). NASW-NC Statement Against HB2. The North Carolina Social Work Newsletter, (2).
Johnson, T. (2017). Why is HB2 still with us? It’s the urban/rural divide. Viewpoint, 23.
Lacour, G. (2017). HB2: How North Carolina Got Here (Updated). Charlottemagazine.com. Retrieved 10 April 2017, from http://www.charlottemagazine.com/Charlotte-Magazine/April-2016/HB2-How-North-Carolina-Got-Here/
Lloyd, A. (2013). Defining the Human: Are Transgender People Strangers to the Law. Berkeley Journal of Gender, Law & Justice, 20(1), 150-195.
Sears, B., & Mallory, C. (2017). The Fiscal Impact of North Carolina's HB2 (1st ed., pp. 1-35). Williams Institute (University of California, Los Angeles. School of Law)..