Now that several weeks have gone by, the situation in North Carolina appears to have settled into a bloody stalemate. While Gov. Pat McCrory has issued an executive order that protects LGBT state employees, it has been widely seen as a bit of legerdemain that attempts to deflect criticism of the governor without actually addressing the real issues. As a result, local protections still remain overturned, no one can file a civil rights claim in state court (even non-LGBT-related claims), and localities cannot set a local minimum wage higher than the state and federal minimum.
Also, transgender people are still not allowed to go pee where they feel comfortable. It takes some serious chutzpah to tell transgender state workers they can’t be discriminated against on the job but they’re also not allowed to use the bathroom of their choosing unless they have bottom surgery — which state employee insurance plans also do not cover.
Given all of this, what have we learned?
1. It’s the bathrooms, stupid.
The people who are against transgender people being in “their” bathrooms say it’s not about transgender people; this is supposedly all about keeping sexual predators pretending to be transgender out of bathrooms. The folks fighting back against this with pro-LGBT messaging keep trying to pull the conversation back to discrimination claims in state court and losing local LGB protections.
However, as Joe Pesci said, “Everything that guy just said is bullshit.”
The “bathroom predator” is a myth, and the people pushing these laws know this. This law is as much about protecting women and children from predators pretending to be transgender as it is about preventing Jabberwocky attacks. Neither was real to begin with. Thus, the only actual people meant to be affected by this part of the bill are transgender people.
Going after transgender people is the one area where social conservatives still (rightly) think they have popular support. North Carolina is just the first state dumb enough to pass one of these laws. This is going to be the fight of the movement for the foreseeable future. Everything else was just poorly thought out overreach.
2. This is all part of the plan to drive transgender people out of public life.
The Family Research Council has published a five-point plan to “morally legislate [transgender people] out of existence” by passing laws that make it impossible to transition. House Bill 2 accomplishes three of the five by eliminating all legal protections for transgender people, making it illegal to use public bathrooms, and making it nearly impossible for transgender children to go to school as their identified gender. The fact that North Carolina managed to hit these square on, along with so many other state bills, is not a coincidence.
3. The people behind HB 2 are part of Ted Cruz’s election team.
While progressive media types have been wringing their hands over the possibility of a Donald Trump nomination (or presidency), the fact remains that Trump almost certainly cannot get to 1,237 delegates, and Cruz has positioned himself to win at a contested convention. That said, three of the leading proponents of HB 2 are on Cruz’s faith advisory council. This should be terrifying to the LGBT community, especially since Cruz is running neck-and-neck in polls against Hillary Clinton, and she tends to fade hard at the end of campaigns.
If you’re transgender, better update that passport.
4. The truth is irrelevant.
This should be patently obvious by now, but the truth is irrelevant to political debates at this point. Politifact rates 76 percent of Donald Trump’s statements as “Mostly False” or worse, and Ted Cruz fares only slightly better, 66 percent. And they’re the front-runners. Along the same lines, Politifact found that transgender people and their allies were telling the truth when we stated that predators don’t bother pretending to be transgender in order to commit sex crimes. It also rated Ted Cruz’s allegation that schools are forcing kids to get naked with transgender kids as “False.” Politifact further rated McCrory’s disingenuous spin control as “False.”
What progressives are failing to realize is that being truthful and correct doesn’t mean we’ll win. Right-wingers have told a lie that preys on people’s fears and misconceptions, and such lies are impervious to facts. All the polling data we have shows that a majority of the public believes the right-wing narratives about transgender people and supports HB 2. It also doesn’t help that most media outlets keep repeating the lie over and over again.
We’re going to need a bigger narrative.
5. Hit ’em where it hurts… the wallet.
After McCrory signed HB 2, a social media firestorm erupted. It didn’t make a difference; he and sympathetic right-wing media felt confident enough to sit back and ridicule transgender people as men in dresses and “angry liberals.” He didn’t start talking detente until companies like PayPal decided not to expand and the National Basketball Association started talking about taking away the 2017 All-Star Game from Charlotte. The Center for American Progress just published a report detailing the $89 million in business already lost because of this law and the $500+ million of future private-sector losses likely to occur if the law isn’t repealed.
The lesson here is that while advocates of direct action might feel good that they made a lot of noise and there’s been some movement, it wasn’t until businesses and performers started costing them money that most North Carolina Republican politicians gave a damn what LGBT people thought. However, making a giant stink may have been part of what motivated these companies to do something tangible.
6. The law is unnecessary and unenforceable.
Law enforcement leaders in North and South Carolina have spoken up and stated the obvious: This law is unenforceable. It has no penalties specified. It invites lawsuits if police start strip-searching people, and especially if they get it wrong. They don’t have the manpower to deal with people using bathrooms exactly the way they’re supposed to, and they certainly don’t have the money for DNA testing.
Richland County Sheriff Leon Lott wrote, “In the 41 years I have been in law enforcement in South Carolina I have never heard of a transgender person attacking or otherwise bothering someone in a restroom. This is a non-issue.”
The law, as written, is exceptionally poorly written. Which brings up the next point…
7. North Carolina’s law is in deep trouble when it gets to court
North Carolina is already being sued by two transgender men, a lesbian, the American Civil Liberties Union, the ACLU of North Carolina, and Equality North Carolina. The state attorney general refuses to defend the law in court. Jillian Weiss of Lambda Legal pointed out in a recent USA Today article that it runs afoul of Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Mark Joseph Stern of Slate also pointed out that the law likely runs afoul of Romer v. Evans, Arlington Heights v. Metropolitan, and Reitman v. Mulkey. All HB 2 has to do to be overturned is violate one of them, much less all five.
In short, the odds that none of these favorable cases apply look pretty slim.
8. Did I mention this is really all about transgender people (redux)?
The ban on transgender people is pretextual. Transgender people aren’t hurting anyone in bathrooms. People aren’t pretending to be transgender to do nefarious things. But the law specifically excludes janitors, and makes no mention of actual registered sex offenders and bathrooms.
It also makes no mention of anti-transgender Republican politicians, however.
In just the past few weeks former Speaker of the House Dennis Hastert as much as admitted to molesting boys as a high school wrestling coach. The main sponsor of Tennessee’s anti-transgender bills turned out to be a serial sexual harasser of women. Alabama Gov. Robert Bentley will likely be indicted for trying to cover up a sex scandal with a former “adviser.”
All Republican politicians, and a perfect illustration that we’d get a lot more bang for the buck keeping them out of bathrooms instead of transgender people.
9. All of this has happened before, and all of it will happen again…
Take look at the cartoons below.
The first is a 1936 anti-Semitic cartoon published in a Nazi-run publication captioned, “Here, kids, I have some candy for you. But you both have to come with me...” The middle comes from an American antigay tract published in 1986. The last came out this year right after Charlotte passed its nondiscrimination ordinance. All of them accuse minorities of being pedophiles and perverts in order to whip up hatred. In the first two cases, minorities were successfully demonized by this propaganda, with terrible consequences (does Reagan’s response to the AIDS crisis ring a bell?).
Based on all the available evidence, right-wing hate groups like the Liberty Counsel, Family Research Council, and Alliance Defending Freedom are succeeding at doing the same thing to transgender people. It’s up to us to keep the inevitable body count down.
10. Get a new plan, Stan.
Credit where credit is due: The LGBT movement has stood firm behind the transgender community on this. There have been calls from some LGB quarters to “dump the T,” and some political observers suggesting that perhaps the movement should leave transgender issues for now and come back to them later. The latter looks particularly foolish, however, in light of what’s happened in Massachusetts and New York when this strategy was attempted.
Anti-transgender laws pushed by hate groups are growing much more common, and getting further and further through the legislative cycles as conservatives latch on to this as a “winnable” social issue. (Not that they’ve had many since 2004.) The tactics, mobilization, and messaging used so far have only been partly successful. Public opinion remains dominated by fear, ignorance, and innuendo driven by right-wing lies and fearmongering. The Houston Equal Rights Ordinance fiasco serves as a perfect illustration of exactly what not to do.
While some leaders correctly see this as a sign that we’re winning in the long run, the trick is to not be eradicated in the short run before we get to the winning part.
Sort of makes the whole winning thing a moot point in that case.
Which is why transgender-led organizations like the TransUnited Fund have sprung up to assist grassroots level organizing. While it hasn’t been clear what the right approach is, it clearly is not avoiding the issue, leaving transgender people out of the conversation, ignoring communities of color, and trying to change the subject. Taking it on and changing the polling numbers is going to require years of outreach by transgender people and their allies as well as a better ground game (as illustrated by a recent study.) And make no mistake, this is going to be a long fight. Interracial marriage wasn’t supported by a majority of Americans until the 1990s.
In the short run, however, we’re going to simply have to count on good legal teams to prevent the worst of the damage.