The Paradox at the Heart of HB2

In the situation room of his embattled re-election campaign, North Carolina Governor Pat McCrory has made the call to run ad after ad doubling down on his support for HB2. He’s ignoring polls showing that a majority of North Carolinians believe HB2 is harming our state, huge blows like the NCAA cancelling all tournaments here, and — above all — sections of the U.S. Constitution that protect LGBT people from discrimination.

On the one hand, HB2 is an old, familiar story. The far right has been scapegoating the LGBT community for political gain for decades — it’s proven a reliable and strategic tactic for motivating their base to show up during election years. The far right also has an ideological mission of passing laws to express the fundamentalist Christian religious convictions that homosexuality is a sin, that sex and gender are fixed and binary, and that sexual relationships should only exist between a married man and woman.

In this sense, HB2 is the latest in a long legacy of laws that have criminalized and regulated the bodies of LGBT people and the most basic of human behaviors — including, now, the use of a public restroom. But those other laws — like sodomy laws and Amendment One– were enforced. However there is no record of the bathroom provisions of HB2 being enforced in any systematic way. The University of North Carolina educational system first said it was complying with this section of HB2 and then came back and said it wasn’t — it’s still not clear if they are or are not. There appears to be no record of it being enforced in restrooms in public schools, libraries, rest areas, courthouses or other government buildings.

This lack of systematic enforcement is the paradox at the heart of HB2. With this law, the far right is signalling a willingness to rupture the basic democratic premise that laws are written to govern and to be enforced.

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In a recent federal court hearing for the ACLU and Department of Justice lawsuits challenging HB2, an attorney for McCrory all but conceded with a shrug that HB2 cannot practically be enforced. Critics of the bill have said this from the start — are you going to post a cop at every public restroom door to inspect someone’s birth certificate and their anatomy? But now even its strongest defenders have been forced to acknowledge that any theoretical enforcement method of HB2 is so facially draconian and so invasive of basic privacies that they can’t even summon the words to conjure what this could look like. In response to media questions on this point, Gov. McCrory trails off into vague incantations of trespassing laws.

HB2 is not even being enforced at the NC General Assembly, the locus of political power for the Republican majority in our state and the very laboratory that concocted the law. How do I know? I was there in April for a mass protest against HB2 led by the North Carolina NAACP. Thousands of queers and allies along the spectrum of gender identity and gender expression protested inside the NCGA for hours, lobbying and protesting. Restrooms were used! No one was stationed at the door to check papers, no one was questioned about whether they were using the “legal” restroom, and no effort whatsoever was made to enforce the law.

HB2 and many of the new wave of anti-LGBT bills that are being proposed across the South cannot be understood through the typical formulation of legislation, which holds that you draft and pass a law with the intent of implementation.

Rather, they are what could be called expressive legislation — untethered by questions of constitutionality or the technicalities of enforcement. Expression of emotion and belief is the goal of such laws; enforcement is secondary, even irrelevant. Legal philosopher Martha Nussbaum posits that anti-LGBT laws are fueled, ultimately, by a combustible mix of fear, disgust and anxiety in reaction to homosexual sex and to understandings of gender and gender roles as fluid rather than fixed. In short, these laws are about expressing visceral emotions, though they are likely to be veiled in rhetoric about family values or, as with HB2, protecting women and children.

This type of legislation gratifies its architects (and their political base), but leads to the worst kind of political malpractice. And that’s exactly what we see in North Carolina right now.

HB2 is about the expression of emotion and religious conviction, scapegoating a minority community that is functionally politically powerless in our state, and flexing political muscle. Above all, it is about intimidation and fear. Enforced or not, the effects of HB2 are chilling for trans people. I know a transwoman who now carries her birth certificate in her purse in the event that she is stopped in a restroom. I know of a transman who has stopped using the restroom at all when he is out. Even though HB2 only addresses public restrooms (courthouses, state government buildings, rest stops), it could easily motivate a vigilante to act in a private setting. That’s the power of this law and indeed any law — it has a teaching effect. When the state condemns, it creates a climate where individuals feel similarly empowered to do so.

HB2 has cast a long, menacing shadow over public life in North Carolina. We have stared down this abyss before and, each time, some combination of public will and federal action have yanked us back into the realm of basic human decency, of equal protection for all, of Constitutionality. That can’t happen quickly enough right now.

Rev. Jasmine Beach-Ferrara is the executive director of the Campaign for Southern Equality, which is based in Asheville, NC, and promotes LGBT equality across the South. She and her family live in Asheville.

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