I am sad to be writing about the backlash in response to North Carolina’s new statewide law (click to read it) providing for single sex multiple occupancy restrooms and statewide regulation of employment laws.
The law is legally sound, moral and ethical. It is not an ‘anti-LGBT’ law or a law that permits unlawful discrimination as it has been widely characterized. It limits the extent to which local governments such as counties, cities and towns can tailor the definition of discrimination with the narrow aims of creating new discrete classes of protected citizens and defining new conduct which would be unlawful.
It is helpful to remember that discrimination (that dirty dirty “D” word) is not illegal, per se. You and I discriminate daily, and so do nearly all of the businesses and government
agencies we interact with. You might say discrimination is an important facet of our freedom to associate. Over the course of our history, certain groups have been discriminated against in such a pervasive and institutional manner that it became necessary to pass laws that would protect these groups, in order to ensure their liberty. Even the most staunch libertarian is usually willing to surrender some ‘liberty to discriminate’ in the interest of ensuring the personhood of others is respected.
Has the scale tipped too far?
Despite desparate attempts to convince you otherwise, the LGBT movement is not the new civil rights movement. Lest we forget, african americans were slaves. They were owned, sold and traded, physically abused and deprived of humanity. There is no comparison between the plight of black people and those with a sexuality that differs from the norm.
Anti-discrimination laws rarely serve their purpose to protect bona fide victims of unlawful discrimination. More often than not, they provide a vehicle for the subject of a lawful adverse action (such as choosing one job applicant over another, issuing discipline, or terminating employment) to negate the premise of unilateral employment contracts (at-will employment) and shift the legal burden to the employer to prove they acted with a non-discriminatory purpose. Bear in mind, this burden-shifting vehicle is entirely unavailable to anyone who does not fit in a statutorily protected class or category. Due to the realities of our legal system, the costs borne by a company in vindication often outweigh the costs of a modest settlement. It is often a business decision to settle even the most unfounded claim, despite the inevitable presumption of the lay person that settling out of court proved the company did something wrong.
Simply put, discrimination suits are often retaliatory shake-downs, and only select groups of individuals have access to the procedure.
We should all support hb2 in North Carolina and any similar law in any other jurisdiction. Not just Christians and straight people. Civil libertarians must take a principled stand in support of this common sense law, because it is not a law that imposes any onerous requirements or regulation; rather it prevents the out-of-control proliferation of local ordinances aiming to impose a new vision of morality. A new religion.
The position I see many modern, younger conservatives taking is that they are ‘fiscally conservative and socially liberal’. This sounds like a bit of convenient ideological fence-riding, but I can get on board with that if it means we don’t hate gay people, we understand that people are different and we want to treat people with love and respect. We must NOT allow this to turn into the statist version of social progress, which holds that it is not enough to treat people with love and respect, but that you must actually adopt and endorse a view of the world that is foreign to you.
Liberty, above all, means liberty of the mind. I would vigorously defend a transgender or gay person against a legitimate case of harassment in which hateful individuals sought to threaten, intimidate, or bully them for who they are. But liberty of the mind means you are free to maintain your view that a person is created as a man or a woman.
Don’t be a Phobe-a-Phobe (one who fears or hates [being labelled as] one who fears or hates). Let your actions speak for who you are.
You are free to maintain your view that gender roles are significant; that there are meaningful differences between men and women, and there is value in maintaining the distinctions. These are not hateful views. Given that foundation, you are absolutely free to ‘cling’ to the age-old notion that single-sex multiple occupancy restrooms are appropriate in your schools and in your places of business.
I suspect this entire issue is a red herring. Practically speaking, if one has undergone surgeries and is a particularly convincing gender convert, it is unlikely that anyone notices when they use a restroom contrary to their birth gender in the first place.
From what I understand, the law permits one who has ‘transitioned’ to change their sex on their birth certificate, so these local provisions are truly only applicable to those who have NOT fully transitioned.
If a business wants to be socially progressive, then by all means they should create unisex restrooms (The North Caorlina law permits this). The opposition to the law, however, is aimed at depriving YOU of the liberty to remain traditional.