On February 22, 2016, after years of work from citizens of the city, the Charlotte city council passed ordinances that prevented businesses from discriminating against LGBTQ individuals and made it illegal to force a trans person to use a bathroom that doesn’t match their gender identity. Immediately after its passing, North Carolina Republicans vowed to overturn the ordinance, and on March 23 they called a special session in order and ended protections for LGBTQ people in North Carolina. In a little over twelve hours, North Carolina became the first state in America to make it illegal to add protection policies to laws for LGBTQ people—and to be clear, while this decision is awful for all LGBTQ North Carolinians, it is life threatening for transgender North Carolinians. North Carolina has effectively enacted a system that makes violence against trans people, especially trans women acceptable.
How did this happen? How does an ordinance affecting a specific city turn into something that changes the laws of an entire state? Well, unfortunately, it’s the Constitution’s fault. The tenth amendment to the United States Constitution says that any powers not dedicated explicitly to the federal government, “are reserved to the States respectively, or to the people.” This idea of States rights enabled the various states in the country to create their own constitutions and govern themselves in whatever manner the people of that particular state choose (as long as those rules and regulations don’t conflict with those in the US Constitution).
This system allowed for the North Carolina constitution to give similar power to local governments just as the US Constitution gives to state governments. But in the case of North Carolina (and 19 other states), a general assembly of statewide elected officials has the final say over any local ordinances that are implemented in the state. They don’t always intervene in local issues—North Carolina local governments still are allowed to make ordinances—but they tend to intervene when an issue, in their opinion, affects more than just the population of a local government. In this case, the General Assembly chose to challenge Charlotte’s ordinance because “laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State will improve intrastate commerce.” Basically, the North Carolina General Assembly thought that Charlotte’s ordinance would negatively affect future businesses desires to come to Charlotte, so they gutted progressive anti-discrimination protections from the entire state. For protection, you know.
In discussing what this law means for LGBTQ North Carolinians, it’s important to look at what the Charlotte ordinance was hoping to accomplish. In a 7-4 vote, the city council of Charlotte approved adding LGBTQ protections to the Commercial Non-Discrimination Policy, the Public Accommodations Ordinance, and the Passenger Vehicle for Hire Ordinance. This meant that in schools, bars, stores, taxis, and places legally defined as places of public accommodation were not allowed to discriminate based on race, gender, religious affiliation, national origin, color, age, disability, and now, their perceived or actual status as LGBTQ. Had the ordinance not been challenged, it would have gone into effect on April 1st of this year. LGBTQ people would be legally protected in Charlotte, and transgender people could use their bathroom of choice.
But as soon as Charlotte passed it, Republican N.C. House Speaker Tim Moore promised lawmakers would do what was necessary to “correct this radical course.” With representatives Dan Bishop, Paul Stam, Julia Howard, and Rob Steinburg sponsoring the bill, legislators requested a special session which was initially denied by N.C. Governor Pat McCrory due to fears that legislatures might try to change more than just the Charlotte ordinances (a fear which was not unfounded, come to find out). The legislators then went behind McCrory’s back to call a special session to order through a two-thirds majority vote—something that hasn’t been done in the N.C. General Assembly since 1981.
When the General Assembly sat down on the morning of March 23, they had many motives, and almost all of them were accomplished. By the conclusion of this special session, not only were Charlotte’s anti-discrimination ordinances superseded, North Carolinian legislatures did exactly what Gov. McCrory hoped they wouldn’t and changed more than just the Charlotte decision.
On a national level, what North Carolina’s general assembly did can have a terrible influence on what happens in the rest of country with regards to anti-discrimination legislation. Heather wrote about the 9 states that have similar anti-trans bills in the work and highlights the ways North Carolina’s ‘success’ will make it easier for other states to enact their own bigotry. The decision will be fought at the court level for sure, but having a law on the books that creates a singular definition of discrimination is a clandestine way to make discrimination and violence against LGBTQ people something that while not necessarily legal, isn’t illegal. What’s so scary about HB 2 is that it doesn’t seem discriminatory when first read, but the contradictions are all over it. It says that North Carolinians have the right not to be discriminated against, but then makes the basis of that protection “biological sex”, immediately endangering anyone who isn’t cisgender. This is terrifying. North Carolina has just set a precedent for how to legally include hate in a law. And other conservative states are watching.
But what does the bill actually do? It is confusing to read and doesn’t actually seem like it is harmful to queer and trans North Carolinians, but if you really break down what’s being said in HB 2, it’s a bill that advocates for violence and bullying. House Bill 2, the official title of the law passed is three-fold. The bill
- Establishes that public schools and other public facilities may only establish single-sex multiple occupancy bathrooms (Single occupancy bathrooms do not need to be single-sex).
- Establishes statewide consistency in laws regarding employment, meaning local governments cannot create policies that would enact a minimum wage higher than the state minimum wage ($7.25), among other things.
- A statewide definition of anti-discrimination is created which cannot be amended or added to; LGBTQ people are left out of the protections given by the state.
The bill was signed into law that same night by Governor McCrory, despite his earlier “protestations” about calling forward a special session. In a tweet, he said, “Ordinance defied common sense, allowing men to use women’s bathroom/locker room for instance. That’s why I signed a bipartisan bill to stop it.” Under the guise of protecting women, Pat McCrory signed this bill, and on April 1st, this discrimination will allow for discrimination to be legal in the state.
Part one and three of the Bill are especially harmful in the violent language they invoke. Throughout the bill, the phrase “biological sex” appears over and over. By invoking the idea of biological sex, North Carolina practices a biological essentialism that equates certain sex organs to certain genders and ignores the multiplicities possible in human gender identity. These words are also dangerous because they advocate for violence against transgender people who are just trying to exist. The bill says that public locations with multiple occupancy restrooms must make those restrooms single-sex and that they must enforce those rules.
The danger of the discourse surrounding “biological sex” comes from the fact that it paints while it’s harmful to all trans folks, in the discussions around public restrooms, it usually paints all trans women as rapists and sexual assaulters. Trans women become perpetrators of violence in the restroom when in reality, trans women are much more likely to be the victims of violence, both in public and in restrooms. Bills like this get passed because their proponents suggest that trans women are going to go into women’s spaces and attack women. Like the writings of Janice Raymond in the early 1970s, this sort of talk paints trans women as monster-men who are trying to infiltrate women’s private sphere and commit acts of violence, ignoring the fact that trans women are much more likely to be at the receiving end of violence, especially in bathrooms. “Biological sex” is an insidious way to be transphobic under the guise of working for women’s rights. Men are all rapists, and trans women are men according to this false logic; to protect women, “biological sex” discourse says that it is okay to harm a trans woman. This is dangerous. It’s untrue, it’s old, and it’s got to stop.
This law also creates a situation where in North Carolina it is now legal to police the bodily appearance of people whose gender doesn’t conform to normative standards of being. North Carolina’s lawmakers have given cisgender people the power to attack trans people—to demand their birth certificate even—if they don’t believe that they belong. This hostile environment privileges the privileged over those who need protection the most. When GLAAD reports that 38.7% of students feel unsafe at school because of their gender expression and that 61.6% had no teacher intervention when they reported bullying, this law puts people in danger. I also want to point out that in North Carolina, the only way one can change their “biological sex” is through changing their birth certificate which can only happen through surgery–an intervention that isn’t always wanted or affordable for trans people, especially trans children.
It also works very hard to maintain the status quo in North Carolina. By refusing to allow the minimum wage to be raised unless the whole state raises it, North Carolina has effectively prevented liberal pockets of the state from enacting policies to keep their constituents safe. It furthers the school-to-prison pipeline by telling trans and gender nonconforming students of color in North Carolina that their options are limited: come to school and be disrespected by your government and peers, come to school and use the restroom that aligns with their gender identity and is arrested, or risk not showing up to school and being arrested for truancy. If you are not white, straight, cis, and well off in North Carolina right now, the government has just handed you a statement saying that they don’t care whether or not you live.
North Carolina is an interesting state to look at demographically—with 17 state funded colleges and universities, there is a highly educated and liberal population. But that population is younger, less likely to vote, and they exist in large concentrations in small parts of the state. So places like Charlotte, Greensboro, Raleigh, and other urban areas are trying and failing to enact legislation that reflects their progressive values because so much of the state is rural and conservative. Watching people around me react to the decision has highlighted some really unpleasant things about the way we as a state function in regards to our government.
I’ve primarily seen two reactions: #WeAreNotThis coming primarily from white communities and calls for mobilization coming from communities of color. I don’t want to imply that hashtag activism isn’t important because it is—especially from an accessibility standpoint. But it is interesting to me that most of the action coming from white people has been to distance themselves from those who put these laws into place. When I see #WeAreNotThis, I see North Carolinians doing what Southerners have been good at for centuries, hiding bigotry under Southern hospitality. #WeAreNotThis to me doesn’t do anything to for the trans youth who have effectively been expelled from school, nor does it offer solutions to communities trying to improve the quality of life. It makes me wonder about the effectiveness of separation. In a situation like this, what does separating ourselves from our lawmakers really do? Especially since in the primary election, slightly more than 17% of North Carolina’s 6.5 million registered voters voted, and that was a record high. If our communities aren’t voting, if our activism is only coming from the internet, and doesn’t participate in local government or grassroots organizing, how is it beneficial? Can we really say that we aren’t the decision our government made if we don’t even work to change the government?
On the other hand, there are communities that are working and have been working to make North Carolina a better place to live for queer and trans people. Communities of color are calling for mobilization all across the state—on March 24th, a Black Lives Matter QTPOC rally in front of the Governor’s mansion is being organized by local grassroots organizations all over the State. Queer and trans people of color are organizing collectively to make sure that their communities are safe. They’re finding the important phone numbers to call, organizing voter education seminars for the future, and (most importantly to me at least) taking the time to honor the pain this decision has caused so many in North Carolina.
In a statement put out by many local grassroots organizations in North Carolina including #BlackLivesMatter North Carolina, the Queer People of Color Collective, and Southerners on New Ground they recognized the relevance of this law passing on the same day that one year earlier, North Carolina trans teen Blake Brockington took his own life.
We honor and fight for Blake by affirming that our lives matter. Anti-transgender bias and legislation and persistent structural racism directly impact the devastating rates of suicidality, unemployment, physical and sexual violence, poverty, incarceration and homelessness experienced by transgender people of color.
Trans and Queer people of color demand a living wage and freedom from criminalization and discrimination, in the workplace and in the bathroom.
Tonight, we are calling for a Special Session of the People outside of the Governor’s mansion. For Blake Brockington, for Angel Elisha Walker, for all Black and Brown trans and queer people in North Carolina who have been murdered, disappeared, or incarcerated, it is our duty to speak. It is our duty to demand freedom, to demand a living wage, to demand education, to demand comprehensive health care that is accessible and free of charge.
Hope comes from the People in North Carolina. Separating “us” from “them” doesn’t get anything done, but as the protestors have chanted over and over in the streets this year, “The people united will never be defeated.” Mobilization after this awful passing is one of the only ways we can heal. We have to find ways to come together as a community and uplift one another collectively and fight back against powers that want us dead. #WeAreNotThis ignores the legacy North Carolina has of oppressing marginalized people. Mobilization, on the other hand, says never again, and offers creative ways for us to come together, publicly grieve, and collectively heal.