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North Carolina’s Anti-LGBT Law Really Is That Bad

HB2’s chief proponents claim it’s just like plenty of other state laws. It’s not.

CREDIT: Shutterstock/J. Bicking
CREDIT: Shutterstock/J. Bicking

The Alliance Defending Freedom (ADF), a conservative legal organization, has helped draft and promote many of the anti-transgender bills that state legislatures considered this year, and it is similarly fighting in court to oppose transgender protections, such as in Illinois and North Carolina. As part of the PR campaign defending these efforts, ADF is now trying to convince the world that laws like North Carolina’s HB2 are no different than other states’ laws by glossing over the way they specifically target transgender people for discrimination.

ADF attorney Matt Sharp, a constant presence in hearings over legislation about transgender issues, took to the Heritage Foundation’s Daily Signal this week to object to the way liberals attack what they think are “radical new types of laws,” that are actually — he argues — “modeled on similar legislation that is decades old.” To prove his point, he found a sentence in HB2 that he believes is “nearly identical” to laws on the books in Hawaii, Rhode Island, and Wisconsin.

Designating multiple or single occupancy bathrooms or changing facilities according to biological sex … shall not be deemed to constitute discrimination.

The other states do have similar language in their laws allowing for separate facilities, but theirs only refer to “sex.” HB2’s provision uniquely references “biological sex,” which it defines according to a person’s birth certificate. In North Carolina, only transgender people who undergo expensive, sterilizing, and potentially unnecessary surgeries can change the gender marker on their birth certificates, so the law there singles out transgender people in the way the others don’t.

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Sharp’s argument that the laws are negligibly different fails, however, because of a much bigger lie of omission. No other state has ever passed laws with the language in HB2 that he doesn’t mention, such as:

Local boards of education shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex.

and

Public agencies shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex.

Unlike the other states’ laws, which allow gender-segregated bathrooms, North Carolina now mandates this separation and dictates which bathroom transgender people can use. And it is these provisions, that actually use the force of law to discriminate against transgender people, that make HB2 so objectionable.

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But Sharp’s apparent aloofness to what’s actually problematic with HB2 extends to the other recent laws that he claims have been singled out. For example, he highlights Mississippi’s suspended law, which specifically outlines ways for businesses to legally discriminate against LGBT people as a simple “conscience protection law” no different from ensuring that doctors don’t have to provide abortions. He’s similarly baffled by concerns over Tennessee’s law allowing counselors to refuse treatment to LGBT people.

Sharp contends that this is all just a big overreaction from liberal activists. “When they can’t win through the normal legislative process, they rush to court seeking a judge who would strike down the law that they were unable to defeat through the representatives of the people,” he opines, declaring that there is “no evidence of discrimination” under these laws.

But these new laws’ only purpose is to discriminate or allow for discrimination against LGBT people. Whether or not they’ve been enforced yet is irrelevant. That’s specifically why a federal judge prevented Mississippi’s law from going into effect; he could find no explanation for its existence except to allow for discrimination.

Sharp ignores this intent so that he can instead demonize those who would advocate for LGBT people. “These activists are not concerned with what is or is not constitutional. They are not concerned about the rule of law. They are focused on defeating their enemies, those with whom they disagree, by any means necessary.”

Sharp concludes that ADF’s beliefs are simply “common sense,” but it seems the only way he can make that argument is by ignoring what ADF actually believes.