Critical Evaluation of North Carolina's HB2 "Bathroom Bill"

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Recently, the state of North Carolina passed a highly controversial piece of legislation regarding transgender people and the use of bathrooms. This sample essay provided by Ultius custom writing services explores the issue in greater depth and to provide prospective clients an example of what they'd receive should they order a sample critical essay like this.

The essay will have four main parts.

1. The first part will consist of an overview of the relevant legislation itself.
2. The second part will turn to a consideration of the issue from the civil rights angle.
3. The third part, though, will then consider it from the women's and children's rights angle, which both overlaps with and contradicts the civil rights angle.
4. Finally, the fourth part will consist of a critical evaluation of the value (or lack thereof) of the legislation under consideration here.

A key conclusion that will be reached is that the moral value of the legislation is somewhat ambiguous and that this is primarily due to conceptual confusions regarding the very nature of gender itself.

Overview of North Carolina HB2

To start with, then, it is worth pointing out that the North Carolina legislation in question here, HB2, was specifically passed in order to override an ordinance-level law that was passed by the city of Charlotte (see Graham).

According to the new HB2 that was passed at the state level, "transgender people who have not taken surgical and legal steps to change the gender noted on their birth certificates have no legal right under state law to use public restrooms of the gender with which they identify. Cities and counties no longer can establish a different standard" (Gordon, Price, and Peralta, paragraph 5).

The Charlotte law essentially said that a born man who now identifies as a woman, or vice versa, could use public bathrooms in accordance with the gender with which they now subjectively identify. The North Carolina overruling, however, states that this will not be possible and that people who identify as transgender must use the bathroom that matches up with their born gender.

An important point here is that the North Carolina HB2 legislation does not, in fact, deny the reality of some persons being transgender. Rather, it simply defines what it means to be transgender in a very narrow way. As Wallace has written:

Transgendered persons who have undergone sex reassignment surgery can use bathrooms based on their reassigned gender because North Carolina permits such persons to change the gender on their birth certificates. (paragraph 9)

Difference between pre- and post-op transgenders

In other words, if a born man has actually had surgery to anatomically become a woman, then North Carolina still recognizes that now women's right to use the woman's bathroom. The law, however, prohibits transgender persons from using the bathrooms of their choice on the grounds of their own subjective identification, basically on the grounds that such an identification is not actually enough to qualify the persons in question as transgender at all.

Moreover, the HB2 law only applies to public facilities; it is indicated that private stakeholders and businesses can still make whatever policies they would like regarding the usage of bathrooms by transgender persons. When this is combined with the fact that the law does not actually include restrictions on transgender persons who have in fact had surgery, the issue under consideration here clearly becomes far more ambiguous and complex than one might imagine by reading sensationalist headlines about this subject.

There are clearly civil rights issues involving the treatment of the transgender population at play here. But there are also issues regarding the rights of the people who, in the absence of HB2, would be expected to share bathrooms with people who are still anatomically of the opposite gender. Finally, there are conceptual problems involved here regarding what transgender itself even is. All of these issues will be explored further in the subsequent parts of the present essay.

The Civil Rights angle

An obvious point that can be made regarding North Carolina's HB2 legislation is that it is a significant affront to the of the transgender population. More specifically, it places significant limits on the capacity of a given person to determine his/her own sexual identity. The law violates gay rights by essentially indicating that unless one has had actual surgery to become the opposite gender, one is not actually transgender, as far as society is concerned.

This means that even a man deeply feels that he is a woman or a woman deeply feels that she is a man, this would hold no water whatsoever in terms of how they are treated by society in general, and in terms of what bathrooms they can use at public facilities in particular. HB2 means that a person's subjective identification as transgender is not enough to make him/her transgender; rather, the law establishes the objective criterion of the person in question having to have had actual anatomical surgery to make him/her the opposite gender.

This could be interpreted as a serious violation of national-level civil rights laws on the part of North Carolina. For example, Lichblau, and Fausset have indicated:

A Justice Department official said that federal officials hoped that the state would agree to comply voluntarily with federal civil rights law by abandoning the measure. But the department has a number of tools it can use to try to force compliance, including denying federal funds or asking a court to do so. (paragraph 3)

Federal viewpoints

From the perspective of the current federal government in Washington, then, North Carolina's HB2 bathroom bill is in flagrant violation of federally ensured civil rights legislation that protect the rights of minorities, including the transgender population. From the civil rights angle, then, which is primarily concerned with ensuring that the rights of minorities or not trampled by the prejudices of the minority, North Carolina's HB2 law clearly appears as a despicable and regressive piece of legislation.

On the other hand, however, it could also be suggested that the HB2 legislation was meant to promote other aspects of civil rights, including states' rights and gay marriage rights. Caulder, for example, has put the matter in the following way:

The bill [H2] passed 83-24 in a floor vote Wednesday afternoon. . . . The legislature called the special session in response to changes to Charlotte's nondiscrimination policy that would allow people to choose which gender-specific facilities to use . . . based on what gender they identify with, not their biological gender. (paragraph 7)

For one thing, this means that the HB2 law actually had a great deal of support within the state of North Carolina itself, which raises questions about whether the federal government ought to be allowed to override this kind of popular mandate. Moreover, the idea that a person can simply use whatever gender-specific facility he wants simply on the basis of whatever he says his gender is seems inherently perverse. And this brings us to the women's and children's rights angle of the issue under consideration here.

The women and children's rights angle

A basic fact is that the Charlotte law (which was overridden by North Carolina's HB2 bathroom bill) would have allowed at least some persons with male genitals fully intact to enter women's bathrooms. This is a fact that is disconcerting to many, and it would be difficult to not see at least some justice in such concerns. After all, the whole idea of having sex-differentiated restrooms in the first place is to keep people with male genitals separated from people with female genitals within the context of a private and personal space such as the bathroom.

According to the Charlotte law, a person who was biologically male but subjectively identified as a woman would have been able to use women's bathrooms, even though he (or she) still had male genitals. This state of affairs caused so much concern within the state of North Carolina called a special legislative session in order to override the ordinance level law that had been passed by the city of Charlotte.

In this context, it can be said that the perspective of women's rights strongly contradicts the perspective of civil rights for the transgender population. As Future Female Leaders has written: "It is heartbreaking to know that so many members of the Democratic Party are fighting to put political correctness before the safety of women and girls" (paragraph 2). The key issue here is that Charlotte's law would have in principle permitted any man who stated that he was subjectively a woman to use women's bathrooms in public facilities.

This potentially opens the door to a wide variety of sex-related crimes. Essentially, if the only definition of being a transgender person were to say that one subjectively felt like one, then there would be little to prevent sex offenders and various other perverts from taking advantage of this scenario in order to pursue their own dark desires. Insofar as North Carolina's HB2 law prevented this from coming to pass, it could be suggested that the law has successfully protected women's and children's rights.

Critical evaluation

Critically evaluating North Carolina's HB2 law, a key point that can be made is that much of the controversy hinges on the very definition of what actually makes a person transgender. HB2 relies on the definition of transgender as a person who has had actual anatomical surgery done to change his/her sex, and the law actually does respect the right of such persons to use public bathrooms that are in accordance with their identified gender.

What the law does not allow, however, is for a person to use the identified bathroom simply because he/she subjectively says that he/she is transgender, while still being anatomically such that he/she is a member of his/her born sex.

Issues with the viewpoints

There is a fundamental conceptual problem with assuming the law influences sexual behaviors in younger adults or children or violates women's rights. And as the philosopher Wittgenstein has pointed out, it is almost impossible to even engage in intelligent debate about a given subject if people cannot even agree on the meanings of the words that they are using. This is clearly true in the case of North Carolina's HB2 law. The question is: is a transgender person one who subjectively identifies as transgender; or, is he/she one who has had his/her genitals altered to the opposite sex?

When it comes to the use of public restrooms, it would actually seem to make a great deal of sense to rely on the objective definition of sex as defined by one's actual genitals, and not by one's own subjective identification. The latter is far too vague for the situation in question, and it potentially opens the door for a wide range of possibilities for sexual criminals.

Understood in this way, then, there would seem to be nothing morally wrong with North Carolina's HB2 law. Again, the law respects the rights of transgender persons who actually have had anatomical surgery to change their sex. In the case of the use of public bathrooms, it makes far more sense to rely on this kind of objective criterion of sex, as opposed to a more subjective criterion that could be easily manipulated by people of all kinds with ill intentions.

Conclusion

In summary, the present essay has consisted of a discussion of North Carolina's HB2 bathroom bill. A key conclusion that has been reached here is that in spite of all the raging controversy that the legislation has caused, its actual provisions are neither all that radical nor all that regressive with respect to transgender rights. It simply says that a person must use the public bathroom that is congruent with one's sex as that sex is reflected by one's actual genitals. This seems intuitively reasonable; and the firestorm surrounding the issue must thus be attributed to a kind of ideological hysteria that fails to consider the actual, concrete situation at hand.

Works Cited

Caulder, Matt. "People Tell of Fears in 'Bathroom' Testimony." NC Capital Connection, 23 Mar. 2016. Web. 7 May 2016. http://nccapitolconnection.com/2016/03/23/people-tell-of-fears-in-bathroom-testimony/.

Future Female Leaders. "Opinion: In Defense of the New NC Transgender Bill: Stop Prioritizing Comfort over Safety." Author, n.d. Web. 7 May 2016. http://futurefemaleleader.com/opinion-stop-prioritzing-comfort-safety/.

Gordon, Michael, Mark S. Price, and Katie Peralta. "Understanding HB2: North Carolina's Newest Law Solidifies State's Role in Defining Discrimination." Charlotte Observer. 26 Mar. 2016. Web. 7 May 2016. http://www.charlotteobserver.com/news/politics-government/article68401147.html.

Graham, David A. "North Carolina Overturn LGBT-Discrimination Bans." The Atlantic. 24 Mar. 2016. http://www.theatlantic.com/politics/archive/2016/03/north-carolina-lgbt-discrimination-transgender-bathrooms/475125/.

Lichblau, Eric, and Richard Fausset "U.S. Warns North Carolina that Transgender Bill Violates Civil Rights Law." New York Times. 4 May 2016. Web. 7 May 2016. http://www.nytimes.com/2016/05/05/us/north-carolina-transgender-bathroom-bill.html?_r=0.

Wallace, E. Gregory. "North Carolina's Bathroom Bill and the Constitution." Public Discourse. 13 Apr. 2016. Web. 8 May 2016. http://www.thepublicdiscourse.com/2016/04/16743/.

Wittgenstein, Ludwig. Philosophical Investigations. New York: Pearson, 1973. Print.