The movement for transgender rights entered a new phase yesterday with Attorney General Loretta Lynch’s announcement that the Obama Administration was filing a federal civil rights lawsuit against North Carolina over its discriminatory House Bill 2 – the so-called “bathroom bill.”
In a powerful speech that will go down as a pivotal moment in the struggle for trans rights, Lynch reminded North Carolina’s government that “state-sanctioned discrimination never looks good in hindsight.” Linking the movement for trans equality to earlier fights for civil rights, she placed HB2, which seeks to legislate what bathrooms trans people are allowed to use, alongside Jim Crow segregation. “It was not so very long ago,” she declared, “that states, including North Carolina, had signs above restrooms, water fountains, and on public accommodations keeping people out based upon a distinction without a difference.”
With this strong declaration and action in support of trans equality by the Justice Department, Pride Month 2016 promises to be another historic one, following on the steps of the Supreme Court’s June 2015 ruling on marriage equality.
HB2: A “trick bill”
HB2, officially known as the Public Facilities Privacy and Security Act, was rushed into law following a vote by the Charlotte City Council in February passing a new ordinance prohibiting discrimination in the city’s public facilities and services on the basis of sexual orientation or gender identity. Though it extended to services such as taxis, accommodations, and city contracts, discussion of the ordinance quickly narrowed on public restrooms and the right of transgender persons to use the toilet that accords with their gender identity.
That ordinance was due to take effect on April 1, but the Republican-dominated state legislature passed HB2 in late March. Democratic Senators walked out of the legislative chamber in protest during the final vote, but by the end of the day on March 23, Governor Pat McCrory signed it into law.
The most blatantly discriminatory language in the bill states that, in public buildings, individuals are only allowed to use the public restroom that corresponds to the sex listed on their birth certificate, regardless of what gender they represent publicly. In its quest to snoop into people’s underwear, HB2 has been called the “most anti-LGBT law in the U.S.” by Charlotte Mayor Jennifer Roberts.
Reverend William Barber, leader of the “Moral Monday” movement in North Carolina, has been an outspoken ally in the coalition against HB2. “This is not really a bathroom bill,” he recently said. “This is a hate bill, where the transgender community is being used the same way that Jesse Helms used gay people and race in ’84… This is a poisonous brew. It’s old-line, again, white Southern strategy politics.”
He has also been vocal in spreading the message that the bill represents not just an attack on the trans community; it is part of a divide-and-conquer strategy playing out nationwide in which the right wing uses local anti-discriminatory laws as a wedge to advance its broader agenda.
Another section of the bill, for instance, prohibits cities in the state from passing ordinances that could raise the local minimum wage, from providing sick leave and other benefits, or instituting living wage requirements in contracts. The bill is thus anti-democratic as well as anti-LGBTQ.
Barber characterized HB2 as a “trick bill,” and said that “the transgender community is being used the same way black people were used in the past or Latino people.” “They are being scapegoated,” he continued, “in order to pass all of these anti-poverty, anti-labor, and anti-living wage parts of the bill.”
History in the making
A lot is at stake for the broad coalition of progressives and labor with HB2, but the attack on the trans community remains at the core of the bill and is thus the focus of the Justice Department’s federal civil rights suit.
On May 4, Justice notified North Carolina that HB2 was in violation of Titles VII and XI of the Civil Rights Act and gave the state five days to withdraw it. McCrory and the state’s Republicans refused and responded by suing the federal government, thus putting $1.4 billion of education funding and $800 million in student loans on the line – this on top of the economic fallout already inflicted in terms of lost investments and boycotts by the bill.
North Carolina’s refusal left the federal government with no other option but to pursue legal action against enforcement of HB2. The civil rights suit that was filed yesterday represents the firmest declaration yet by any U.S. administration in support of trans equality. “Gender identity is innate,” it states, “…a transgender man’s sex is male and a transgender woman’s sex is female.” It is a clear statement that identity goes beyond birth certificates and cannot be legislated.
The suit is the latest in a string of moves by the Obama Administration as it makes good on the President’s 2009 pledge that the LGBTQ community would be pleased with the progress made by the end of his time in the White House. In addition to last summer’s marriage ruling by the Supreme Court, there has also been the repeal of the military’s “Don’t Ask, Don’t Tell” policy, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Executive Order 13672 banning discrimination in federal hiring, and the appointment of numerous LGBTQ officials to public positions.
Even more powerful than the language of the lawsuit itself, however, was the speech made by Attorney General Lynch in announcing it. Her remarks are already being called “the most important speech ever delivered on the topic of trans rights by any government official.”
She encouraged Americans to not turn away from each other, but to learn from the mistakes of the past and to “write a different story this time.” The most poignant part of her speech came when she addressed the transgender community directly:
“Some of you have lived freely for decades. Others of you are still wondering how you can possibly live the lives you were born to lead. But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward. Please know that history is on your side. This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy – but we’ll get there together.”
It is now becoming increasingly certain that historians will look back on the years 2009-2016 as a period of rapid advance for LGBTQ equality in the United States. For the trans movement in particular, the nation now seems to be approaching the point of critical mass – there will be no going back.
Photo: Demonstrators protested against House Bill 2 outside the Governor’s Mansion in Raleigh, N.C., on March 24. Jill Knight | The News & Observer | Associated Press