In South, defiance on bathroom laws shows signs of wavering

When the United States Justice Department took aim at North Carolina’s transgender “bathroom law” Wednesday, state House Speaker Tim Moore didn’t mince words.

“We’re not going to get bullied by the Obama administration,” he told reporters Thursday. “That’s not how this works.”

But there are signs – both within his state and without – that such defiance in defense of bathroom bills throughout the South might not work, either. The Justice Department letter, claiming that North Carolina’s House Bill 2 violated federal civil rights protections, has begun to flip the chessboard.

Concerned about reprisals, the city boasting the toughest transgender bathroom law in the nation rescinded it this week, and North Carolina’s Republican Gov. Pat McCrory – a staunch defender of HB 2 – told a radio show “I might be in trouble.”

For weeks, states considering passing bathroom bills faced the vague threat of business reprisals. Now they face the concrete threat of billions of lost federal dollars. North Carolina faces a Monday deadline. 

It has put Republican leaders across the South in a difficult spot.

“The ball’s in McCrory’s court,” says Carl Tobias, a professor at the University of Richmond School of Law in Virginia who has followed the HB 2 debate. “Unfortunately, politicians [like Governor McCrory] can have a field day with this issue for their base, and that’s a big problem, since it’s stoking fears.”

For many conservatives, the resistance to allowing transgender people to use the bathroom of their choice is well-deep. At the core of their concern is not just bathroom access, but a fundamental reconfiguration of social standards.

North Carolina Senate leader Phil Berger responded to the Justice Department letter by saying that the administration and federal courts “are on the verge of completing their radical social reengineering of our society by forcing middle school-aged girls to share school locker rooms with boys.”

Many Americans, even some gay and lesbian people, are confused by issues around gender identity, says Don Haider-Markel, a political scientist at the University of Kansas who studies lesbian, gay, bisexual, and transgender (LGBT) issues.

North Carolina isn’t helping, other analysts say. For example, some politicians have defended the bathroom bill as a way to protect women and children from attacks. But no such attacks have occurred, according to several newspaper investigations.

“It’s very difficult for people to figure out the truth, particularly in a state like North Carolina, where so much intentional disinformation is coming directly from the government, the governor, and the General Assembly,” says Shannon Gilreath, a professor at Wake Forest University School of Law in Winston-Salem, N.C. “They’re intentionally running a propaganda campaign to malign transgender people in this state.”

For its part, Wednesday’s Justice Department letter to North Carolina was clear. The protections of federal civil rights law mean North Carolina’s House Bill 2 “is facially discriminatory against transgender [state] employees on the basis of sex because it treats transgender employees, whose gender identity does not match their biological sex … differently from similarly situated non transgender employees.”

A federal court decision last month in Virginia found that neither states nor municipalities could tell Americans what bathrooms they’re allowed to use.

In comments to “The Big Show with John Boy and Billy” this week, Governor McCrory said he can’t understand how a law aimed at protecting privacy in public restrooms is seen as discriminatory. “It makes you a little nervous” if transgender people are allowed to use the bathroom of their gender identity, he said.

But he added: “Society is changing quickly and anyone who gets in the way is in trouble. I might be in trouble.”

The comment came as Oxford, Ala., which had passed the toughest transgender bathroom law in the nation, rescinded it Wednesday. The potential for legal repercussions against the town weighed heavy on the discussion, according to newspaper reports.

Mississippi Gov. Phil Bryant, who last month signed into law a bill allowing municipalities to set “sex-specific standards” for their “intimate facilities,” also told reporters that he’s aware that the Justice Department letter puts his state on notice.

Some 14 states and municipalities have debated some 200 bathroom-related bills this year.