Biological Sex and Gender Identity: How Ambiguity Influenced North Carolina House Bill 2

When, in February 2016, the city of Charlotte, North Carolina expanded its public accommodations ordinance to prohibit discrimination against LGBT people — gays and lesbians, based on sexual orientation, and transgender people, based on gender identity — it extended protections beyond the reach of North Carolina law for the fourth time in almost fifty years. The first was in 1968, when Charlotte first adopted its public accommodations ordinance, prohibiting discrimination on the basis of race, color, religion, and national origin. In 1972 and 1985 it amended the ordinance to prohibit discrimination based on sex (Carcaño 23). Until March 23, 2016, North Carolina’s public accommodation law protected only the disabled (State Public Accommodation Laws). Thus, although Charlotte had, for decades, enacted and amended an ordinance more restrictive than state law, the state took no action against the Charlotte ordinance. That forty-some years of inaction by the North Carolina legislature could be viewed as neglect on the part of the state. However, I believe it is symptomatic of something far more sinister. When the city of Charlotte again amended the ordinance — this time to prohibit discrimination against LGBT people — the state then claimed that the city had exceeded its authority. The North Carolina General Assembly convened a special session to pass the Public Facilities Privacy & Security Act, commonly called House Bill 2 (“H.B. 2”), which defines “biological sex” as “the physical condition of being male or female, which is stated on a person’s birth certificate,” and requires boards of education and public agencies to restrict the use of any multiple occupancy bathrooms or changing facilities to be used only by individuals of the same “biological sex” (North Carolina 2).

If the use of multiple occupancy bathrooms and changing facilities should be based on “biological sex…as stated on the birth certificate,” then it can be argued that H.B. 2 recognizes the moral categorical imperative by insisting that everyone follow its ruling. Its enforcement would also prevent harm, treat all people with dignity, and promote compassion and moral sensitivity. The procedures prescribed by H.B. 2 would be a good representation of the law of reciprocity, resulting in the greatest happiness.

However, neither gender identity nor sexual orientation can be dictated to an individual…not by a birth certificate, nor by any other entity. Carcaño v. McCrory, a lawsuit challenging H.B. 2, notes the fact that “the gender marker on a birth certificate is designated at the time of birth generally based upon the appearance of external genitalia” (8), but “that there is a medical consensus that gender identity is innate” (8) and that “determinations of sex can involve multiple factors, such as chromosomes, hormone levels, internal and external reproductive organs, and gender identity” (8). Thus, it argues, “a person’s gender identity refers to the person’s internal sense of belonging to a particular gender…and that efforts to change a person’s gender identity are unethical and harmful to a person’s health and well-being.” (8; emphasis added). “Gender identity is a core, defining trait and is so fundamental to one’s identity and conscience that a person cannot be required to abandon it as a condition of equal treatment” (38).

If the definition of “gender identity” provided by Carcaño v. McCrory is accurate, then H.B. 2 fails deontology by ignoring the dignity of — in fact, harming — those whose “biological sex” does not match their gender identity. It violates their rights to liberty, and is anything but virtuous. It might be viewed as treating others as oneself, and resulting in the greatest happiness…but only by those who are not fully informed of its consequences.

North Carolina Governor Pat McCrory maintains that H.B. 2 does not “take away existing protections for individuals in North Carolina” (Myths vs Facts). In fact, H.B. 2 not only takes away existing protections, it also mandates harmful scenarios:

McCrory argues that the Charlotte ordinance required businesses “to allow a man into a women’s restroom, shower, or locker room if they choose…[eliminating] the basic expectations of privacy people have when using the rest room by allowing people to use the restroom of their choice” (Myths vs Facts). Senate President Pro Tempore Phil Berger and state Senator Buck Newton agree (Carcaño 26). However, their argument is not sound. The ordinance simply affirmed the right of every person to use facilities based on gender identity, not choice. In addition, the argument is morally weak, lacking moral sensitivity. Under the Charlotte ordinance a transgender woman would use a women’s multiple occupancy restroom, where she would not look — or feel — out of place…regardless of the gender marker on her birth certificate. Under H.B. 2, that same woman would be prohibited from using a women’s multiple occupancy restroom unless the genetic marker on her birth certificate had been updated.

The process of updating the genetic marker can be extremely difficult, and sometimes impossible. Yet, McCrory claims that “anyone who has undergone a sex change can change their sex on their birth certificate” (Myths vs Facts). That is but one example of how the framers of H.B. 2 fell woefully short in their ethical duties of justice and nonmaleficence, displaying a lack of moral sensitivity, by taking away the rights of the LGBT community. Carcaño v. McCrory points out the unsoundness of McCrory’s claim:

116. Changing the gender marker on one’s birth certificate is not a viable option for many transgender people, as every jurisdiction has a different set of often onerous and unnecessary requirements for updating the gender listed on a birth certificate.
117. For instance, a person born in North Carolina can only update the gender marker listed on a North Carolina-issued birth certificate with proof of certain surgeries that may not be medically necessary, advisable, or affordable for any given person. Even more troubling, a person born in neighboring Tennessee can never change the gender listed on a Tennessee-issued birth certificate. (28)

North Carolina General Statute § 130A-11B requires that “sex assignment surgery” be performed before the state will update the genetic marker on a birth certificate. However, in some cases that surgery is unnecessary. In other cases it is impossible (Carcaño 40). McCrory’s claim is unsound and morally weak.

McCrory, Berger, and Newton make the moral argument that the Charlotte ordinance created a safety issue that is eliminated by the passage of H.B. 2 (Carcaño 26). That argument, too, is fallacious, making it unsound. Carcaño v. McCrory points out that “prior to the passage of H.B. 2, it was already illegal for a person to enter a restroom or locker room to assault or injure another” (29), and that “protecting transgender people from discrimination in public accommodations, as has been done in numerous states and hundreds of localities, has resulted in no increase in public safety incidents in any jurisdiction anywhere in the United States” (29).

On the other hand, transgender people who enter a multiple occupancy restroom or changing facility designated for the opposite sex likely would feel concerned for their own safety. Since H.B. 2 does not contribute to the safety of non-transgender people, but does create safety concerns among transgender people, it does not recognize the categorical imperative, nor is it just in protecting legitimate interests. Its creators lacked moral sensitivity, and violated the law of reciprocity.

State Senator David Curtis suggested another moral argument by expressing his concern that “the gays would go into a business, make some outrageous demand that they know the owner cannot comply with and file a lawsuit against that business owner and put him out of business” (Carcaño 27). His premise, though, is a version of the slippery slope fallacy. Rather than being a sound moral argument, it argues against reciprocity, beneficence, justice, compassion, honesty, moral sensitivity, and the rights of others.

McCrory maintains that, by expanding its ordinance to protect the rights of the LGBT community, “Charlotte was exceeding its authority and setting rules that had ramifications beyond the City of Charlotte” (Myths vs Facts). However, for more than four decades Charlotte had an ordinance that exceeded the authority of North Carolina’s public accommodations law. Only when Charlotte added protections to lesbian, gay, and transgender people did the state of North Carolina step in to restrict the city of Charlotte. H.B. 2 not only removes Charlotte’s protection of LGBT rights by “[banning] transgender people from accessing restrooms and other facilities consistent with their gender identity” (Carcaño 40), it specifically “blocks local governments from protecting lesbian, gay, bisexual, and transgender…people against discrimination in a wide variety of settings” (Carcaño 1; emphasis added). Thus, the legislators who enacted H.B. 2 — and those who support it — display a lack of compassion and moral sensitivity. The law restricts the legitimate interests — both welfare and liberty rights — of LGBT people, sidestepping its ethical duties of nonmaleficence and justice, and blatantly ignoring the law of reciprocity.

The City Council of Charlotte had it right. When that body expanded its public accommodations ordinance to prohibit discrimination against LGBT people, it demonstrated its recognition of universal moral principles. By employing the law of reciprocity it recognized the categorical imperative, showing beneficence, nonmaleficence, self-improvement and justice. It displayed compassion, courage, and moral sensitivity by affirming the legitimate interests of the LGBT community.

Works Cited

Carcaño v. McCrory. 1:16-cv-236. United States District Court for the Middle District of North Carolina. Filed 2016. American Civil Liberties Union. Web. 9 Apr. 2016. < https://www.aclu.org/sites/default/files/field_document/dkt_1_-_carcano_v._mccrory_complaint.pdf >

“Myths vs Facts: What New York Times, Huffington Post and Other Media Outlets Aren’t Saying about Common-sense Privacy Law — Pat McCrory for Governor.” Pat McCrory for Governor. The Pat McCrory Committee, 26 Mar. 2016. Web. 9 Apr. 2016. <http://www.patmccrory.com/2016/03/26/myths-vs-facts-what-new-york-times-huffington-post-and-other-media-outlets-arent-saying-about-common-sense-privacy-law/>.

North Carolina (State). Legislature. Assembly. Public Facilities Privacy & Security Act. Second Extra Session 2016. (March 23, 2016). North Carolina General Assembly. Web. 9 Apr. 2016. < http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v1.pdf >

“State Public Accommodation Laws.” National Conference of State Legislatures. 13 Mar. 2015. Web. 9 Apr. 2016. <http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx>

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