How the GOP Laid the Groundwork for North Carolina's Antigay Law

Pat McCrory
Gov. Pat McCrory

Many were shocked this week by the sudden passage a North Carolina bill rescinding LGBT-inclusive antidiscrimination laws in the state, but the rationale behind it was all too familiar.

Republican Gov. Pat McCrory, who signed House Bill 2 into law, released a statement on the reasoning behind the measure. “The basic expectation of privacy in the most personal of settings, a restroom, or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte.” 

His language is strikingly similar to a recent resolution from the national Republican Party on the Obama administration’s support for appropriate restroom access for transgender students, one that takes the same position as the most recent wave of anti-LGBT bills.

The resolution drafted by the Republican National Committee in January referred to the administration’s position the subject as “governmental overreach.” The statement also labeled it “an infringement upon the majority of students’ Constitutional rights.”

“The Republican National Committee calls on the Department of Education to rescind its interpretation of Title IX that wrongly includes facility use issues by transgender students,” the resolution read.

In 2014 the federal government clarified that because Title IX the Education Amendment of 1972 prohibits discrimination based on sex, it bands discrimination based on gender identity.

“All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX,” a Department of Education memo read. “Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”

This meant that, as far as the Obama administration was concerned, trans students should be allowed to use the restrooms and other sex-segregated facilities that match their gender identity, rather than the sex they were assigned at birth. The stance was tested last year in a case involving an Illinois high-schooler. The transgender girl's school district agreed to accommodate her after the Department of Education ruled it had discriminated by not doing so.

These events and increased transgender visibility in general have led to a rash of anti-trans bills in state legislatures this year, and the RNC resolution backed state governments in such efforts.

“The Republican National Committee encourages state legislatures to enact laws that protect student privacy and limit the use of restrooms, locker rooms, and similar facilities to members of the sex to whom the facility is designated,” the resolution read.

The anti-trans bills in many states specifically target restroom use by trans students in public schools, but North Carolina's is broader, barring any municipality in the state from enacting or enforcing LGBT-inclusive antidiscrimination protections. The impetus for the state's move was the Charlotte City Council’s February decision to expand existing nondiscrimination statutes to include sexual orientation and gender identity, providing equal access in all public accommodations, such as businesses — and public restrooms. The new city policy was set to to into effect April 1, but now it will not.

North Carolina is the first state to pass a law targeting transgender people since the GOP’s January statement, but it may not be the last. As Autostraddle notes, nine additional states are considering their own anti-trans legislation. These include Illinois, Kansas, Kentucky, Mississippi, and South Carolina.