North Carolina’s Anti-LGBT Law Encourages Dangerous Gender Surveillance

Gov. Pat McCrory, not quite understanding how gender works.

Chip Somodevilla/Getty Images

Since the North Carolina legislature and Gov. Pat McCrory rushed through HB2—a statewide measure that, while slyly avoiding naming them directly, bars LGBT people (and some veterans) from inclusion in municipal nondiscrimination protections and blocks transgender people (including students) from using restrooms in state-related facilities consistent with their gender identity—in a 12-hour special session on Wednesday, the law has been roundly criticized by both the LGBTQ and, perhaps more powerfully, business communities as the most trans- and homophobic state law in the nation. It has been deemed unconstitutional by legal commentators (including my colleague Mark Joseph Stern) and described as an affront to decency and good governance by the editorial boards of both the New York Times and the Charlotte Observer—the latter of which compared the action to politicized Southern racial bigotry of the previous century.

If North Carolina’s experience is like that of other states that have toyed with this kind of rank legislative prejudice, the pressure to repeal or strike down HB2 will only grow—and hopefully succeed. But unfortunately, for the state’s LGBTQ—and especially trans—residents, the psychic damage has been done.

Since the repeal of Houston’s “HERO” nondiscrimination ordinance last fall, LGBTQ advocates have been scrambling to find a means of combating the incredibly effective “bathroom predator myth”—the idea that motivated North Carolina’s HB2 and suggests that trans people, and trans women in particular, are really men trying to get into women’s rooms for nefarious purposes. It cannot be stated enough: There is no evidence to support this prejudiced notion—and yet, it persists, as Gov. McCrory’s own explanatory statement made clear. Aside from reiterating that point strongly and often, a good way of fighting the myth is to present the voices of trans people speaking about how stressful and dangerous going to the bathroom is for them already, as Outward recently did with a post by Gabrielle Bellot. Another strategy, it occurred to me while processing the news from North Carolina, is to point out that the gender surveillance encouraged by laws like this is actually bad for trans and cisgender people alike.

By gender surveillance, I mean what this law will look like in practice. In establishments where those in charge wish to enforce this kind of measure, individuals entering the bathroom will have to be watched very closely. Barring voluntary declarations of gender identity, no one has explained yet how, say, an office secretary will automatically know which gender is “correct”; one can only imagine they would judge based on what they think “men” and “women” should look like. Not only is this a crazy thing for a stranger to be doing; it’s also bound to result in all kinds of people—trans, cis, or otherwise—being publically called out for not looking like they “should.”

To be clear, I don’t mean to equate the danger this kind of surveillance portends for trans people, who undoubtedly would suffer worse outcomes at the hands of a bigoted public and police force, with the relative discomfort faced by gender nonconforming cis folks. (And it should go without saying that many trans individuals adopt a traditional gender presentation.) But it’s worth pointing out that all kinds of people aren’t traditionally “masculine” or “feminine”—for example, having grown up just south of Charlotte, a certain Southern genre of butch cis woman comes to mind. Granting some random person the authority to adjudicate who “passes” on the way to the toilet is a recipe for disaster.

In the backlash to HB2, a number of trans folks have pointed out the foolishness of forcing dudely trans men to use the women’s room and likewise with feminine trans women and men’s rooms. The point is a good and pithy one, as a viral tweet from North Carolina resident JP Sheffield demonstrates:

However, the core truth here—that “biological sex” and gender identity (or presentation) often have nothing to do with each other—is the one that opponents of trans equality, or even folks just unfamiliar with or nervous about trans people, need to grasp. Many of us, whether we’re cis or trans, cannot or do not want to “live up to” the ideals of overtly masculine man and feminine woman in our daily lives, and strangers—not to mention the government—have no business policing where we fall on the spectrum. They just need to let us pee in peace.