The Fundamental Flaw in HB2

As do countless citizens and corporations, I fundamentally disagreed with North Carolina’s 2016 legislation now known commonly as HB2. It was as much hateful as it was an egregious violation of federal law. I have pointed out in other posts that treating all females as frail victims incapable of defending themselves or speaking for themselves is supremely misogynistic just as it is supremely misandrist to presume all males to be menacing predators. In fact, I argue that the same mental processes which make a particular person (man or woman) a predator are the very same mental processes that make a comparable person a hero. You see, while a predator perceives a given set of circumstances as a potential victim to be exploited, a hero perceives those exact same circumstances as a potential victim in need of defense. And in this the old cartoons got it right! The hero and the villain wear identical hats and the color merely reflected the content of their character. Apart from these extremes, though, most males just go about their own business and their presence is neither good nor evil.

There were many things wrong with North Carolina’s 2016 H.B.2, but the biggest problem was fixating on sex rather than gender.  For starters, sex is a federally-protected class in many venues including employment. Gender, however, is not a protected class. And even though the two words are often used interchangeably, they are do not have the same meaning as I have pointed out in another post.

North Carolina lawmakers also failed to understand the history of gender-segregated toileting. While I also have various other posts on the topic, it is sufficient to say that gender-segregated toileting has only existed in American since 1887 and even then it evolved due to Victorian ideals of propriety (i.e. it was not lady-like to use the toilet so it had to be minimized to the extent possible, which is how euphemisms like “powder room,” “rest room,” and “water closet” came into common parlance). Gender-segregated toileting never had anything to do with safety. In fact, what about the safety of boys, the developmentally disabled, and elderly men? They are just as likely to be victimized by predators as any of their female counterparts.

North Carolina lawmakers further failed to understand the First Amendment’s freedom of association. This freedom gives Americans the right to associate with others as they please. Freedom of association underpins church congregations, fraternities, social groups, political parties, civil liberty groups (NRA, ACLU, etc), and countless other assemblies that we take for granted. I would argue that these freedoms give gender nonconforming individuals the right to associate with the gender of their choosing.

Returning, though, to the original premise of this post, the fundamental problem with North Carolina’s H.B.2 was that it operated upon the federally-protected class of sex rather than gender identity and/or gender expression. I do not believe that any bill could ever survive federal review if based on sex, but I think it could survive if based on gender. By this I mean to say that the federal courts have long recognized reasonable restrictions on Constitutional freedoms to the extent that the aim is to maintain public order. For example, the First Amendment enshrines free speech, but that does not give a person the right to yell “fire” in public place when there is no fire. Similarly, a person may display swastikas but no one may use swastikas to intimidate other persons. So I believe states could pass defensible legislation that regulates assembly based on gender identity and gender expression, but I just don’t see how legislation based on biological sex could ever survive federal review nor receive social approval.

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