North Carolina’s state legislature recently passed HB2, requiring governmental bathrooms and locker rooms to be separate based on biological sex. Despite LGBT activists’ insistence that hateful animus against transgender people motivates this law, in reality the law does not discriminate against LGBT people any more than it does against other special classes, and instead offers a reasonable balancing of conflicting privacy interests.
By now you have probably heard about North Carolina’s terrible, horrible, no good, very bad law which requires people to use bathrooms based on their physical anatomy rather than on the gender with which they self-identify. Opponents have challenged the law in court and are certain that it will be struck down as unconstitutional. Their confidence is misplaced and I want to explain why.
The controversy began in Charlotte where the city council repealed an existing ordinance that specifically excepted restrooms, showers, and similar facilities from the prohibition on sex discrimination. At the same time, the city council added sexual orientation and gender identity (SOGI) as protected classes under the city’s public accommodations ordinance. Repeal of the restroom exception combined with the new SOGI protections made clear that Charlotte businesses and other places open to the public could no longer separate men and women in such facilities on the basis of sex or gender identity.
The North Carolina state legislature convened a special session before the Charlotte ordinance went into effect and passed the Public Facilities Privacy and Security Act, otherwise known has HB2, that voided the ordinance and preempted similar efforts by localities in the future. Such statewide preemption is permissible in North Carolina because local governments can exercise only those powers given them by the state legislature.