A Philosopher's Blog

North Carolina’s Anti-Antidiscrimination Law

Posted in Ethics, Law, Philosophy by Michael LaBossiere on April 13, 2016

Apparently eager to do some serious damage to North Carolina’s reputation and economy, the state’s Republican controlled legislature passed “the bathroom bill” and the Republican governor signed it immediately. This law seems to have been in response to Charlotte, North Carolina passing a city ordinance extending legal protection for LGBT people and allowing transgender folks to use bathrooms based on their gender identity.

The “bathroom bill” makes it so that local governments cannot pass their own antidiscrimination laws—the state law, which is more restrictive than the Charlotte ordinance, trumps all local laws. The reason it is called the “bathroom bill” is that it has the effect of forbidding transgender people from using the bathroom that matches their gender identity. Instead, they must use the bathroom that matches the sex on their birth certificate. Interestingly enough, the law also precludes any local government from passing its own minimum wage laws—the minimum wage falls under the antidiscrimination law.

While the most plausible explanation for the law is prejudice against people who differ from the heterosexual norm, the proponents of the law obviously cannot make that the public reason for their support. Rather, there are two main reasons presented in defense of the law. The first is that the imposition of state control over local governments was an attempt to rein in “governmental overreach” on the part of Charlotte and other local governments.

There is a certain irony in Republicans passing a law that restricts the liberty of local governments—this is because the importance of local government and assertions about getting big government off the back of the people are stock talking points. However, many Republicans seem to be fine with local government only to the degree that the locals do what they want.

To be fair, there are legitimate issues here about the extent of the authority of local governments and the extent to which the state has the right to impose on local authorities. One approach is practical: having a hodgepodge of inconsistent laws across a state would be difficult for citizens and businesses—there are advantages to uniform, statewide laws. Another approach is a matter of ethics—the restrictions and liberties of laws should be the same across the state based on the principle of fairness. Of course, using a moral foundation for uniformity would require a moral assessment of the laws being imposed: having an unjust law imposed uniformly would be worse than a just law that was imposed in limited locations.

My own view is that antidiscrimination laws should be uniform but also just. As such, I do agree that the state (and federal government) should be setting these laws. But, these laws must be just. In the case of the North Carolina law, my view is that it is unjust because it codifies discrimination while forbidding local authorities from passing just laws. Hence, the state is in the wrong here. I now turn to the second justification for the law.

Proponents of the law contend that they do not support it from prejudice and that it does not discriminate. They claim that the law is needed in order to protect people, especially children, from being assaulted in bathrooms and locker rooms by transgender people.

On the face of it, the law does aim at meeting what I consider a basic justification of a restrictive law: it has the professed intent of protecting people from harm. This is an excellent justification for limiting liberty and is the principle that justifies, for example, forbidding companies from knowingly selling dangerous or defective products.

While the professed intent does matter, the proper assessment of a restrictive law aimed at preventing harm requires considering whether the harm in question justifies the restrictions being imposed.  In the case of the bathroom bill, the easy and obvious answer is that it does not. The reason is that there seems to be an exceptional lack of evidence that transgender people will present a danger to others if they are permitted to use bathrooms based on their gender identity.

While it is certainly not impossible for a transgender person to engage in such an attack, the statistical evidence is that there have been no attacks. There are currently numerous states and many cities that allow people to use facilities based on their gender identity—so there have been many opportunities for such attacks.

The obvious reply is to point to claims that such attacks (or at least sexual misconduct) have occurred, thus refuting the claim that transgender people are not a threat. The counter to this is to point to the fact that such claims tend to be mere urban myths and that the evidence shows that the myth of the transgender bathroom assault is just that, a myth.

It could be countered that while there is currently no evidence that allowing transgender people to use bathrooms based on their gender identity, an attack could happen and this possibility, however remote, justifies the law.

The easy and obvious response to this counter is that basing restrictive laws on the mere possibility that something bad might happen would be absurd. This principle would warrant incredibly restrictive laws across the board and would also warrant violating most, if not all, rights. For example, men might attack women on hiking trails, so trails must be restricted to one gender to avoid the possibility of attack. As another example, a car might be used in vehicular homicide, therefore people should be forbidden from owning cars. Naturally, if it could be shown that transgender people pose a serious risk to the safety of others, then restriction would be justified. However, the threat would need to match the restrictions imposed by the law.

As a final response, a proponent of the law could say that when a case of a transgender person attacking someone in a bathroom is confirmed, that will show the law is justified. The counter to this is to point out that this principle is absurd—if a car ban were proposed, it would not be justified by pointing to a case or even a few cases of vehicular homicide. As noted above, what would be needed is evidence of a threat that warrants the restriction.

In light of the above discussion, the “bathroom bill” fails the basic test of restrictive laws: it imposes restrictions without the justification of preventing a sufficient harm. This should come as no surprise—the law is not about protecting people but about prejudice.

 

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15 Responses

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  1. ajmacdonaldjr said, on April 13, 2016 at 8:28 pm

  2. TJB said, on April 14, 2016 at 8:23 am

    “While the most plausible explanation for the law is prejudice against people who differ from the heterosexual norm.”

    Really? My first thought is that the most plausible explanation is to protect children and women from sexual predators.

    • Magus said, on April 15, 2016 at 8:00 pm

      Yes, Mike, bad assessment here. Can I change my gender every other day, since it’s merely a construction of my mind?

      • Michael LaBossiere said, on April 20, 2016 at 7:02 pm

        Interesting question. This is like asking whether you can change some core aspect of your personality or self every other day because the personality is just a mental construction. I would say, following Aristotle, that core changes would require considerable work. Shallow traits would probably be easy to change regularly.

        Gender, I would suppose, is a core personality trait. Naturally, a person could say “today I will dress as an X” or “today I will be gender Y” just as a person could say “today I will dress like a brave person” or “today I will be a brave person.” But, I don’t think that would make a person change gender or become brave.

        I admit that I am not an expert on the psychology of gender. I never had any doubts about being male, just as I never had any doubts about being a runner or hating to lose. But, I am not all people and cannot speak for them.

    • Michael LaBossiere said, on April 19, 2016 at 3:03 pm

      There seems to be no evidence that trans people attack other people in bathrooms.

      Sexual assault is already illegal, so these bills do nothing to improve safety.

      • WTP said, on April 20, 2016 at 6:11 am

        Name the fallacies in these two statements…anyone….anyone…Bueller..?

        • TJB said, on April 20, 2016 at 7:59 am

          Young girls secretly want dirty old men parading naked in their locker rooms?

          • WTP said, on April 20, 2016 at 11:37 am

            Do you purposely misunderstand these distinctions or do you really not grasp these nuances?😉

            • TJB said, on April 20, 2016 at 12:24 pm

              OK, I’ll bite. This is a perfect example of Mike being wrong on the merits and in response he resorts to buffoonery (aka clown nose).

          • Michael LaBossiere said, on April 20, 2016 at 7:09 pm

            I’m reasonably sure that behavior is already illegal.

            If there is evidence that transgender people attacking people in bathrooms is an actual threat, then there would be a justification for such laws. Likewise, if there is evidence that priests have molested children, then laws banning priests from being alone with children would seem to be justified by the same sort of principle of safety.

            However, laws already seem to be in place to address these concerns: attacking or harassing people in bathrooms/locker rooms is illegal just as molesting children is illegal.

            • WTP said, on April 20, 2016 at 8:52 pm

              Doubling down on the stupid. Purposely misunderstanding distinctions. It’s the new clown nose. Only the most sophisticated commenters can see it. Good catch, TJ.

            • TJB said, on April 21, 2016 at 8:08 am

              Mike, three points.

              1) The question was about the motivation of the law. You seemed to think it was about hatred of transgendered people, and I pointed out that the people supporting the law were plausibly motivated by good intentions.

              2) There is no way to tell the difference between a trans person and a pedophile posing as a trans person.

              3) It is simple enough to move toward gender neutral bathrooms by building private stalls inside bathrooms.

              This is another example of a social problem that has a simple technological solution. Rather than pushing for the technological solution, the left wants to ram these laws down society’s throat and then accuse whoever disagrees with their program of being a hater. You are guilty of this because you deny the good intentions of those who disagree with you.

            • Michael LaBossiere said, on April 26, 2016 at 5:25 pm

              1. Speculating about true motives is risky, I will admit. However, one check would be to see if a credible threat exists (that is, the use of trans cover to assault or peep is common enough). Another would be to see if laws already criminalize the behavior under concern (assault and peeping). There does not seem to be a credible threat and assault and peeping are already illegal.
              2. True. But how often do pedophiles dress up as women to engage in their misdeeds?
              3. Problem solved. I think women’s bathrooms already work that way. Any ladies here who can confirm this?

            • WTP said, on April 24, 2016 at 8:42 pm

              Apropos of absolutely nothing, something to ponder whilst the crickets chirp…

              Social justice has become scientifically illiterate, logically unsound, deeply bigoted and openly supremacist. Social justice professors are indoctrinating young people into a pseudoscientific cult behind closed doors that is doing damage to their health, education and future.

              Social justice has become a victim of its own good intentions and in the desperate attempt to make the world better for some it is creating a world better for none. It has become another ideology fit only to pave the road to Hell, so it is time to turn around and choose another path that is concerned with reason, science and improving the lives of every human.

              To clarify, we are calling for the teaching of social justice courses in universities to be temporarily suspended. What follows is up for debate, but as it stands now, social justice is causing far more harm than good and it must be halted and reassessed.

              https://www.change.org/p/universities-suspend-social-justice-in-universities

  3. urbannight said, on April 14, 2016 at 11:23 am

    Reblogged this on Urbannight's Blog and commented:
    This is a very well constructed argument about why the ‘bathroom bill’ is wrong.


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