North Carolina’s newest state law doesn’t just extinguish the city of Charlotte’s attempt to ban unequal treatment of gay and transgender people, it also takes away the ability for any other city or county in the state to pass general anti-discrimination laws protecting a range of people.
That makes North Carolina’s “bathroom” legislation special nationally – only two other states, Arkansas and Tennessee, have gone so far to block local officials from deciding it’s okay for transgender people to choose which bathroom to use.
The remainder of the states either have taken no action to prohibit such legislation or, in the case of 18, plus the District of Columbia, have acted affirmatively to enable people to choose the men’s or women’s restroom, depending on their gender identity, not the sex they were born with.
In addition, an estimated 200 cities, many in states without a statewide discrimination ban, have passed non-discrimination ordinances to protect gay, lesbian, bisexual and transgender people.
At issue isn’t just who can use which bathroom – though that’s the part of the debate that gets the most attention – but whether city and county leaders should have the authority to weigh that issue for themselves and adopt non-discrimination ordinances on their own.
Similar bathroom choice debates – and the related issue of whether gay, lesbian and transgender people should be covered by non-discrimination clauses – have entangled many state legislatures and governors over recent years.
At least two states, Florida and Indiana, have seen legislation introduced in recent months that would make transgender bathroom choice punishable as a criminal offense.
But North Carolina’s legislative treatment was unique, experts say – House Bill 2 was unveiled, voted on and signed by Gov. Pat McCrory in a matter of hours, with hardly any debate despite concerns it has potential consequences for all workers unrelated to their sexual orientation and gender identity.
Jennifer Pizer, senior counsel for Lambda Legal, a nonprofit legal organization advocating for lesbian, gay, bisexual and transgender people, called the law and the speed with which it was passed a “mean muscle-flexing” effort by state lawmakers playing on unjustified fears that transgender people could become sexual predators in bathrooms.
“It’s purely (based on) imagined potential problems . . . It’s almost like a form of mass hysteria that can take off, especially during an election season,” she said.
Pizer estimated that there have been 200 or more bills introduced in state legislatures over the past year designed to limit LGBT rights in a range of ways. Most, she said, were painted as measures to grant religious exemptions for people who do not want to serve gay and transgender customers.
Legal challenges to such laws have had mixed success, Pizer said.
“Sometimes state legislatures pass laws that are grossly unconstitutional and we are able to succeed in court with judgments striking them down. But, that’s not always the case,” she said, adding that a legal challenge is possible in North Carolina but she can’t predict the outcome.
Without federal protections, the result is a patchwork of laws across the nation governing the most basic physical need.
Here’s a look at some of how several states have dealt with the matter, gleaned from news reports and advocacy organizations:
▪ Tennessee in 2011 became the first to pass a preemptive state law banning localities from adopting LGBT protection ordinances. The law was prompted by Nashville officials mandating that companies doing business with local government could not discriminate against employees based on sexual orientation or gender identity. Since then, Tennessee has turned their attention toward bathrooms. Just this week, Republican lawmakers introduced a bill that would mandate schools require students to use bathrooms according to their sex at birth.
▪ Arkansas – State law in Arkansas is similar to the law in Tennessee. Last year, a new law restricting municipal control over discrimination protections passed in the Republican-controlled legislature. Still, not long after, the cities of Little Rock and Eureka Springs passed local non-discrimination ordinances defying state law by including LGBT people.
▪ Maryland – One of 18 states that extend protections under state law to gay and transgender people, Maryland’s legislature fought off an attempt in 2014 by Republican lawmakers who wanted to regulate the bathroom issue.
▪ District of Columbia – Washington, D.C. is one of the few jurisdictions that spells out how its bathroom non-discrimination laws apply to businesses, according to the national Institute of Real Estate Management, which recently published guidance on the issue for its commercial members. Under a D.C. law passed in 2006, public restrooms are required to be gender neutral, if the bathroom is single-occupancy. The law predominately governs signage on restroom doors. Officials acknowledge not all businesses follow the law.
▪ South Carolina – State law doesn’t include legal protections for LGBT people but doesn’t preclude municipalities from adopting their own. For example, some of the Palmetto State’s tourism towns and government hubs have included LGBT people in non-discrimination laws. Those cities include Columbia, Charleston, Folly Beach, Myrtle Beach and Richland County, according to the Charlotte Non-Discrimination Ordinance Coalition, which advocated for the Charlotte law that irked North Carolina’s state lawmakers.
▪ Kentucky – Republican lawmakers unsuccessfully floated a bathroom bill last year. The Senate approved the measure but it failed in Kentucky’s Democrat-controlled House. The bill sought to mandate that school bathrooms be used only according to one’s “biological sex” – a term used in North Carolina’s law this week. Kentucky’s state non-discrimination law does not include LGBT people.
▪ South Dakota – This state came close this month to passing a bathroom law that would have kept transgender students from having a bathroom or locker room choice in school. Republican Gov. Dennis Daugaard vetoed the bill, saying school districts should have local control. South Dakota’s existing laws do not include non-discrimination protection for LGBT people.
▪ Indiana – A bill pending in the Senate would create a new misdemeanor offense for some transgender people who use a restroom not matching that of their birth sex. The proposal includes a term called “single sex public facility trespass,” which would apply to adults who use restrooms or locker rooms of the opposite sex, regardless of whether the person identifies with their birth gender. The bill would also prohibit schools from allowing transgender students to choose their bathroom.
▪ Florida – Last year, Florida considered a bill similar to Indiana’s that would have imposed criminal penalties for any transgender person who uses a single-sex restroom not matching that of their birth gender. The proposed law also would have potentially held business owners liable if the restroom law were violated. The effort failed. Republican lawmakers had introduced the legislation in response to a Miami-Dade County ordinance that bans discrimination based on gender identity in public spaces. Current state law does not prevent localities from forming their own non-discrimination laws.
▪ Kansas – State lawmakers are considering a new mandate for school districts and public universities to keep transgender students from using the bathroom of their choice. Part of the proposed law would let students sue their school for $2,500 if administrators don’t enforce the measure, according to TIME magazine. Kansas’ non-discrimination law does not include LGBT people and Republican Gov. Sam Brownback last year rolled back earlier protections for LGBT members of the state workforce. By executive order, Brownback overturned a 2007 executive order that extended discrimination protection to gay or transgender state employees, the LA Times reported.
▪ Washington – Earlier this year, state lawmakers narrowly defeated a bill that would have reversed a state commission’s ruling that either men’s or women’s public restrooms could be used by transgender people, according to their gender identity. Washington is one of the 18 states where gay and transgender people are protected under non-discrimination law.
Lawmakers in at least 12 states have introduced bills this year that would restrict which bathroom transgender students can use, according to attorney Ryan Thoreson, a critic of anti-LGBT laws. In seven of those states, Thoreson says, legislative efforts have been stalled or knocked down; others are pending.