North Carolina’s LGBT Discrimination Law HB2: Its Folly and Motivation



On March 23, the NC House and Senate both passed legislation entitled the Public Facilities Privacy & Security Act, the full title being “An act to provide for single-sex occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations” (commonly referred to as HB2).  The legislation was signed into law that same day by NC Governor Pat McCrory.  The law has been widely condemned, attracting national attention, as being discriminatory against the LGBT community.  A good summary (source of the above quote) on the background, legislative history and response to the law is provided here.  The day prior to this posting, Governor McCrory issued an executive order that, per a Raleigh New & Observer editorial, was a clear attempt at damage control and will accomplish little to undo the damage.

The precipitating event for HB2 was the passage of an amendment by the Charlotte (NC) City Council with a non-discrimination ordinance that prohibited discrimination of the basis of sexual orientation or gender identity in public accommodations (as well as passenger vehicles for hire and city contractors).  As such the law acquired the nickname ‘the bathroom law’.  Despite assertions by Governor McCrory that ‘new LGBT’ law doesn’t take away existing rights, fact checking found differently with Laura Noble (a Chapel Hill employment discrimination lawyer) stating: “I won’t refer to this as a ‘bathroom bill’ because that’s really not what it’s about.  It’s about the elimination of discrimination protections.”

Although much is being written (and rightfully so) about the broad discriminatory nature of this legislation, it was the reaction of state lawmakers to the Charlotte ordinance that caught my attention.  The reaction was reenforcing harmful myths about the LGBT community (fears about public safety) as well as some naivety (ignorance?) in failing to understand the complex nature of biologic diversity, such as assigning sexual identity based on anatomy at birth (sexual identity is far more complicated than anatomy).  But it is the behavior of the leadership of the Republican Party, at its highest levels, in attending an annual summit (Values Voter Summit) hosted by two hate groups that unmasks the real intent of the law – pandering to hatred and intolerance for votes.

The following represents a communication sent to my elected state lawmakers, Representative Nelson Dollar and Senator Tamara Barringer, with copy to House Speaker Tim Moore (R), House Democratic Leader Larry Hall (D), Senate President Pro Tempore Phil Berger (R), and Senate Democratic Leader Dan Blue (D) on April 10, 2016.



Representative Dollar and Senator Barringer:

I have been meaning to drop you a note regarding my concerns about HB2 (the ‘bathroom law’ as it is commonly referred to).  I copy leaders of both parties in both the NC House and Senate.

We know one another, largely through the business community, so first an update about what I’ve been doing.  Following serious illness with my wife, Mary, several years ago (you both know her), I decided to leave my corporate career and turn my background in research, healthcare and business to the intersection of human rights and various political/social issues, seeking evidence-based approaches.  Recently I authored a report on African-American Gun Violence Victimization that was joined by both Amnesty International-USA and the Violence Policy Center.  I gave a statement of the work at the US Department of State in 2014 and then travelled to Geneva, Switzerland where I participated in the review of our country’s obligations under the International Convention on the Elimination of all forms of Racial Discrimination – a treaty we ratified in 1994.  The report was instrumental in having the UN’s CERD declare for the first time that the grossly disproportionate loss of life to gun violence in our minority populations, particularly African-Americans, constituted a human rights violation and a breach of our obligations under that Convention – it additionally held that such disproportionate violence, intimately linked to racial/ethnic discrimination, violated one of the most fundamental duties of our government, to protect life and provide security of person.  It adopted all but one of the recommendations in the report and actioned our government to provide evidence of steps taken to implement the recommendations by 2017.

Another area of interest for me has been the plight of the LGBT community.  In addressing HB2, I will bring two elements of my background into play: 1) My biomedical research background as it relates to biological diversity; and 2) Leadership where I served for three years as an adjunct professor, course director and lecturer on leadership development at Campbell University and also taught such as continuing education to business owners.

Although making use of publicly available information, I make clear here that I do not represent nor speak on behalf of any organization in what follows.


Biologic Diversity

Where the law has it wrong from the get-go is that it assigns sexual identity based on anatomy at birth.  Biology involves a lot more than just anatomy, and it’s clear that anatomy is not a reliable predictor of sexual identity/orientation/preference in all cases.  We are complex organisms and diversity is part and parcel of what we are.   And diversity being what it is, it not surprising that we should see a mix of interrelationships between identity, orientation and preference.  That sexual orientation/identity is an integral part of an individual is supported by attempts to change it that have harmed sexual minority individuals – exacerbating distress and depression as well as contributing to a negative self-image.  Further, on the issue of homosexuality, the American Psychological Association, in its Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts, “affirms that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality regardless of sexual orientation identity” and further “affirms its 1973 position that homosexuality per se is not a diagnosable mental disorder [and that] recent publicized efforts to repathologize homosexuality by claiming that it can be cured are often guided not by rigorous scientific or psychiatric research, but sometimes by religious and political forces opposed to full civil rights for gay men and lesbians.”  The Southern Poverty Law Center (SPLC) filed, and won, a first-of-its-kind lawsuit against a New Jersey conversion therapy organization for fraudulent practices, claiming the the organization’s representatives violated New Jersey’s Consumer Fraud Act.  The American Psychological Association’s Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts can be found here.

The SPLC has also published a debunking of 10 damaging myths about the LGBT community, such as gay men molest children at far higher rates than heterosexuals, same-sex parents harm children, amongst others.

The fear about a ‘public safety issue’, as expressed by legislators, is unwarranted and contrary to experience in other states where trans-inclusive jurisdictions exist.  But if public safety is the fear motivating this law, one would think that sexual orientation and/or identity would be more of a concern than the anatomy of a person, i.e. the psyche of an individual would be the driver of an untoward advance or attack, not the anatomy.  And this is where the law makes no sense.  This law, as one example, forces individuals having a male sexual identity to use the women’s restroom.  The law would seem to be counter-productive to the (unwarranted) fears being expressed.  And regarding sexual preference, let there be no doubt that since the inception of separate male and female restrooms, that such facilities have been entered by ‘anatomically correct’ individuals whose sexual preference is the very gender for which those rooms were intended.  And where have the problems been in either venue with untoward advances or predatory behavior towards youngsters?  Male children are every bit at risk of molestation by heterosexual men (one regrettable recent high profile case involving a former US House Speaker) and yet we express no reservations in sending them to a restroom.

The law really makes no sense in regard to the fears that motivated the legislation.  It is simply discriminatory targeting of the LGBT community.



What gives away the underlying motivation for the law stems from the leadership of the Republican Party at its highest ranks at the national level, and even within our state.  It’s about exploiting hatred and discrimination for votes.  We’ve seen this as well with other minority populations, notably our African-American community.

In September of each year a meeting is held in Washington DC called the Values Voter Summit.  The politician speakers were all Republican in 2015 and represented by the who’s who of the party.  The list of 2015 speakers can be found [here] and include, in part, Donald Trump, Rick Santorum, Marco Rubio, Rick Perry, John McCain, Bobby Jindal, Mike Huckabee, Lindsey Graham,Ted Cruz, Ben Carson and others.

Two of the hosts of this summit are the Family Research Council (FRC) and the American Family Association (AFA).  Both organizations have been labeled as hate groups because of the propagation of known falsehoods – claims about LGBT people that have been thoroughly discredited by scientific authorities – and repeated, groundless name-calling.  For some examples, Tony Perkins (FRC President) has associated gay men with pedophilia, i.e., that they are sexually predatory with children.  He further has asserted that children are being recruited into the ‘lifestyle’, additionally referring to LGBT identities as “perversion”, “immoral” and “disgusting”.  AFA’s Bryan Fischer has claimed that “homosexuality gave us Adolph Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine and 6 million dead Jews”.  He described Hitler as “an active homosexual” who sought out gays “because he could not get straight soldiers to be savage and brutal and vicious enough”.  In our own state, Representative Paul Stam (House Majority Leader) was interviewed by FRC’s Perkins and AFA’s president,Tim Wildmon, on AFA radio in Fall 2011 during the Amendment 1 debate.  By their very participation in these events, politicians in leadership positions are lending credence to the poisonous message of these organizations.  And leadership sets the tone.

Where this becomes dangerous is that it reenforces hatred that culminates in hate crimes against this population.  In 2011 SPLC estimated that members of the LGBT community were 2.4, 2.6, 4.4, 13.8 and 41.5 times as likely as Jews, blacks, Muslims, Latinos and whites, respectively, to be the target of hate crimes.  Hate language, the dehumanization of individuals by the type of language issued by these organizations, is the ‘permission factor’ that reenforces bigotry and contributes to hate crimes.

HB2 is simply another piece of legislation that plays to an element of the political base opposed to full civil rights for LGBT’s.  It’s really pretty shameful, and the response to this law across our nation should be sending a strong signal about the growing acceptance of this element of our diversity.