More state battles on religion, sex, and discrimination law

Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]

Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]

Finally, I’ve got a letter to the editor in the Wall Street Journal responding to an opinion piece the paper had run by Georgia state senator William Ligon:

Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.

Walter Olson
Cato Institute


  • Mr. Olson,

    These “uniform new duties of exclusion”, that Part I “imposes” are only that any Single-Sex Multiple Occupancy Bathroom and Changing Facilities are used by persons of only that biological sex. In short, that biological men can’t use public bathrooms, locker rooms, and showers designated for women. You really are against THAT??

    And some local governments, mostly school boards, have been misusing the discretion, even though they largely don’t want to, because they are being strong-armed by the Department of Education, which now claims (under title IX, no less) that high schools must allow any boy who personally identifies as a girl, to shower and change with the girls, because otherwise it’s “sex discrimination”. This bill gives them cover against such tactics.

    What’s absurd is that this bill was needed at all, but unfortunately it is, in a world where common sense has flown out the window, and people now think you can change your sex simply by stating so (no surgery or hormone treatment, etc, even required). I didn’t think it was a libertarian idea that men should be able to use women’s facilities, and visa versa. If that’s really the goal, then push for a bill eliminating all gender segregation entirely.

    The bill is not very long. Anyone can read the actual text of the bill here, and see for themselves. It’s not very long:

    • Let’s start with an example. Jackie, who works in the court clerk’s office, has been living as female for 25 years and had surgery 20 years ago, but (perhaps never anticipating this change in state law, or perhaps facing difficulties of distance or other logistics) has never obtained an amended birth certificate. The new law now requires Jackie to start using the men’s room (or none at all) even if, in the supervisor’s judgment, there had been no problems or complaints before and there *are* likely to be problems and complaints now.

      Quite possibly the correct resolution of these frictions is not the same in every type of government facility, or in every type of community. The idea that one gets more robust local-manager discretion by banning such discretion is doubly puzzling. First, it should have been straightforward to draft language giving local building or school managers wider, rather than narrower, discretion to challenge visitors or direct them to use particular facilities. Second, standing up to ill-conceived federal intrusion is exactly what this kind of enactment is poorly equipped to do, because the position of the EEOC, U.S. Department of Education, and similar agencies is that federal supremacy overrides state laws that are at cross purposes with it. It is interesting that states seem to be averse to the direct approach of going to court to challenge the feds over meddling in school and workplace bathroom issues based on scant statutory authority.

      In this area, as so many, some on the Left seek to impose ideological order on the messy details of individual lives, disdaining the everyday ways most of us manage to get along with each other. That can be a temptation for some on the Right as well.

      • But Jackie could get her birth certificate amended, couldn’t she?

        And on the other end of the spectrum, you have students like
        “Lila” who is literally a boy who put on a wig and showed up to school one day claiming to be a girl. Lila had no hormone treatments, surgery, or anything. But according to the DoE (and now supported by a Fourth Circuit ruling), the school MUST allow a student like Lila unfettered access to the school’s showers.

        How would you propose dealing with that, if not for the NC law?

  • When Arizona passed its anti-illegal immigration law back in 2010, my city was quick to announce that it would boycott all things Arizona. It was then revealed that the city only did business with one Arizona company: American Traffic Solutions, who operates the city’s red light cameras. Shockingly, they were exempt from the boycott.

  • Walter, I don’t know how to understand your example. Is “Jackie” a common or frequent representation of transgendered persons, or is it a rare or unusual representation?

  • […] Yes, a legislature does advance important state interests when it pre-empts local employment regulations [Hans Bader, CEI, on one element of North Carolina HB 2 law, on which earlier] […]

  • […] fact the right one. More: Richard Epstein/Hoover, Roger Pilon/Cato, Robby Soave/Reason, and earlier here and here on the North Carolina […]