David R. Henderson  

Cordato on Bathrooms and State

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UPDATE BELOW

The saga of the so-called Charlotte bathroom ordinance -- and the state of North Carolina's response to it -- has taken on a life of its own. At the national level leftists are accusing North Carolina of bigotry while, in the name of tolerance, a growing list of performers and businesses are boycotting the state. Unfortunately, what has gotten lost in all the rhetoric surrounding this issue is the truth about both the original Charlotte law and the state's response to it.

So begins an article by Roy Cordato, appropriately titled "We Need Separation of Bathroom and State."

This is the first piece I've read (I'm not saying there weren't others that made the same point--I just didn't see them) that clarified the issues involved.

A key few paragraphs:

Their [businesses'] goal is to provide the products and services that most of their customers want in an environment that those customers feel comfortable in. This environment may indeed be different for different establishments depending on the desires and cultural makeup of their clients. This Charlotte ordinance told businesses that they are not allowed to adjust their decisions regarding their bathroom, locker room, or shower facilities in order to accommodate customer preferences. In this sense the now overturned Charlotte ordinance was a gross violation of property rights and economic freedom and on libertarian grounds needed to be overturned.

So what was the state of North Carolina's response to all this? In fact, it was to restore freedom and property rights and to guarantee those rights across the state. The law in North Carolina that so many progressives are up in arms about does not prohibit businesses from having bathrooms, locker rooms, showers, etc., that allow use by people of all genders defined biologically, psychologically, or whatever. In a "myths vs facts" explanatory statement put out by the governor of North Carolina this was made quite clear:

Can private businesses, if they choose, continue to allow transgender individuals to use the bathroom, locker room or other facilities of the gender they identify with ...?

Answer: Yes. That is the prerogative of private businesses under this new law. ...The law neither requires nor prohibits them from doing so.


What I find striking and disturbing is how little support there is today in this country I moved to, in part because of freedom, for freedom of association.

UPDATE:
Commenter Peter H below makes a good point. He writes it well and makes his point starkly with this last sentence:

If North Carolina had passed a law saying that businesses could not be compelled to not discriminate based on race, and that simultaneously the government would have "whites only" bathrooms in all government facilities, I think you'd be appalled.

He's right. I would be appalled.


Comments and Sharing






COMMENTS (20 to date)
Thomas writes:

A corollary to your final paragraph: There's increasingly little tolerance for freedom of non-association, which is just an aspect of freedom of association,.

David R Henderson writes:

@Thomas,
Exactly. Freedom of association necessarily means the freedom not to associate.

Foobarista writes:

But what would "corporate social responsibility" be about if it isn't about making sure men could use women's changing rooms, and doing so with force of law?

Of course, nearly all these businesses - as well as the Hollywood types involved - happily do business in the Middle East and other parts of the world that aren't exactly LGBT-friendly, but shockingly they don't stand by their "principles" in those places.

Postliberarian writes:

Interesting. I read HB2 and didn't actually notice it only applies to bathrooms run by the public sector. However, those public sector bathrooms are mandated by law for use by biological sex.

There is also a second part of the law that essentially forbids municipal governments from providing legal protection from loss of employment due to sexual orientation (people still can't be fired due to race, sex, or religion). Technically, this is a victory for freedom of association, but that's still a pretty unpopular position for libertarians to defend.

Peter H writes:

There's a strong case that the bad outweighs the good in this bill.

First, unlike a private facility, persons can be compelled to go to public buildings. School-age children are labeled truants, for instance, and witnesses or jurors are compelled to go to a courthouse through no choice of their own. To subject those people to criminal punishment based on a totally unnecessary thing like this where their behavior poses no threat to the safety of anyone is morally monstrous.

Even outside of truly mandatory things like courts, denying to a class of persons the ability to do business with government for extended periods (such as going to a long public meeting, or going to a public university, or being a public employee) is also very bad. If North Carolina had passed a law saying that businesses could not be compelled to not discriminate based on race, and that simultaneously the government would have "whites only" bathrooms in all government facilities, I think you'd be appalled.

Andrew_FL writes:
that's still a pretty unpopular position for libertarians to defend.

I imagine they are quite used to it. Being right means standing for what's right, not what's popular.

TMC writes:

Peter H: This nothing like a whites only bathroom. What you want to do is compel women, including children, to go to the bathroom with men. People are either men or women (barring one in a million cases) and going to the bathroom is a biological function. It is not unreasonable to base it on biological criteria. I do support other LGBT-friendly laws, but this is idiotic.

Mr. Econotarian writes:

You might want to read the bill, it does contain language regarding government restrooms. Moreover, it discriminates based on "biological sex" based on a birth certificate of "male" or "female" which of course inherently leaves out intersexed. Germany, for example, allows parents of children without "clear gender-determining physical characteristics" to register them not as male or female, but to choose a third blank box instead.

From HB2 Full Text:

"Single-Sex Multiple Occupancy Bathroom and Changing Facilities. – Local boards of education shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex."

"Definitions: Biological sex. – The physical condition of being male or female, which is stated on a person's birth certificate."

David R Henderson writes:

@Mr. Econotarian,
You might want to read the bill, it does contain language regarding government restrooms.
Yes, Mr. Econotarian, I did read the bill. That is why I updated.

Peter H writes:

Thanks for the update Prof. Henderson.

It is the unfortunate reality of American history that public and private discrimination are far more interwoven than we would like to think. The recent spurt of "religious liberty" bills in fact spout from a pretty dark place within the American experience, and are pretty brazenly intended for the government to support only the liberty of favored groups. While there can be well drafted laws which broadly protect religious freedoms (the federal RLUIPA is a good example), it is generally best to be skeptical of legislative tinkering in social issues. More often than not, it does not come from an impulse of protecting the liberty of all persons, and is far more often directed towards punishing disfavored groups.

For a truly horrifying example, look at this analysis of a "religious freedom" bill recently adopted in Mississippi.

Hans writes:

All standards of decency and morals are
being destroyed or undermined by the
Socshevikes, until all is fair and little
or no standards exist.

When potty politics becomes another
social smorgasbord justice campaign, it is a
clear signal of a society in full devolution.

Our final resting place shall be a nation so
convoluted that it's participants will have
lost all concepts of right and wrong.

Now, all are witnessing the evolution of discrimination and it's long and destructive path.

roversaurus writes:

You are correct when you say that separate bathrooms for males and females is a case of "separate but equal" and therefore I guess it is discriminatory. So therefore *ALL* instances of separate facilities for males and females *including* separate showers in high school locker rooms is discriminatory.

That is what you are arguing for. Community showers for children. That or the *enormous* expense of individual showers *and* changing rooms at every government school or swimming pool.
Anything less is discriminatory.

Roy Cordato writes:

Thanks to everyone for commenting on this and thanks to David for giving it some exposure. I know lots of people read this blog. I have one question for David and one point I'd like to make--which I noted on David's FB page.

David with respect to your update and your response to the hypothetical proposal by Peter H, that you would be "appalled," as a libertarian would you be against the private business part of such a law allowing those businesses to discriminate based on race if they so choose? What if the law stated more generally that in decisions related to trade and exchange all people, including business owners and their customers, could freely associate with, or not, anyone they choose?

The point that I'd like to make is that the actual rule for government owned facilities, which has been noted, is not separate by biological gender but by gender as it appears on one's birth certificate. So, for example Caitlyn Jenner, even thought she has not had a sex change operation, could use the ladies room in government owned facility. Actually I think this makes a lot of sense because it separates those who are serious from those guys, especially, who just want to slip into the women's bathroom for a while. What the law is actually saying is not that transgender people cannot use the bathroom that they most identify with but there needs to be some proof that you are what you say you are and not just some peeping tom. That seems reasonable to me.

David R. Henderson writes:

@Roy Cordato,
Thanks for coming on the blog and clarifying.
Now to your question and comment. First your questions:
David with respect to your update and your response to the hypothetical proposal by Peter H, that you would be "appalled," as a libertarian would you be against the private business part of such a law allowing those businesses to discriminate based on race if they so choose?
No.
What if the law stated more generally that in decisions related to trade and exchange all people, including business owners and their customers, could freely associate with, or not, anyone they choose?
That’s the law I favor. I have been a long-time defender of freedom of association. Indeed, that’s why I highlighted your excellent article.
Now to your comment:
The point that I'd like to make is that the actual rule for government owned facilities, which has been noted, is not separate by biological gender but by gender as it appears on one's birth certificate. So, for example Caitlyn Jenner, even thought she has not had a sex change operation, could use the ladies room in government owned facility. Actually I think this makes a lot of sense because it separates those who are serious from those guys, especially, who just want to slip into the women's bathroom for a while. What the law is actually saying is not that transgender people cannot use the bathroom that they most identify with but there needs to be some proof that you are what you say you are and not just some peeping tom. That seems reasonable to me.
Thanks for that clarification. That sounds reasonable to me too. It also contradicts what a friend who follows this told me by email.

Phil writes:

This case is the latest evidence that "tolerance" is not a universal virtue.

Those who espouse tolerance only do so for the causes and positions they tolerate.

If tolerance is a virtue, the progressives would celebrate the conservatives' right to impose bathroom restrictions.

Brian writes:

"First, unlike a private facility, persons can be compelled to go to public buildings. School-age children are labeled truants, for instance, and witnesses or jurors are compelled to go to a courthouse through no choice of their own. To subject those people to criminal punishment based on a totally unnecessary thing like this where their behavior poses no threat to the safety of anyone is morally monstrous."

Peter H.,

This would be monstrous if it actually described what this law does, but what you are describing doesn't describe the law at all. No one is receiving a "criminal punishment."

Public bathrooms in the U.S. are segregated for privacy reasons. This segregation is considered lawful. This segregation exists even if transgendered people are allowed to use the bathroom that fits their identified gender. The only question is whether bathrooms should be segregated based on sex (biological male or female) or (chosen) gender. It is not logically valid to claim that segregation by gender is OK but segregation by sex is not, nor that one is punishment but the other is not.

The NC law is merely specifying that in state buildings, bathroom segregation will be based on sex rather than gender, AND that businesses may not be punished for segregating their bathrooms according to the same criterion.

Mark Bahner writes:
What the law is actually saying is not that transgender people cannot use the bathroom that they most identify with but there needs to be some proof that you are what you say you are and not just some peeping tom.

Under the law, it's not possible for a person to prove "they are who they say they are," except with a birth certificate. But isn't the whole point of a "transgender" person that the original birth certificate does not match who the person says they are?

The language of the bill is:

"Local boards of education shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex."

"Definitions: Biological sex. – The physical condition of being male or female, which is stated on a person's birth certificate."

Why does the State of North Carolina need to tell its local boards of education what they shall do with respect to multiple occupancy bathrooms and changing facilities designated for student use? Wouldn't a better law be to allow local boards of education to make exceptions on a case-by-case basis?

Hans writes:

Phil, well written and in full
agreement.

Peter H writes:

Brian,

The point is that enforcement of that segregation is done by the government in a punitive manner. Why is it necessary to enforce the segregation at all? You could just label restrooms based on gender as a suggestion without bringing in the law enforcement power of the state.

Is HB2 merely a suggestion? It seems to mandate that local governments and schools actually enforce its provisions and not grant waivers except in limited circumstances.

Ryan writes:

Asserting something as punitive, does not make it punitive. There are significant problems with other parts of HB2, and indeed, we should be skeptical of legislation tinkering of social issues just as the (poorly thought out) Charlotte ordinance was doing. The Federal government requires individuals undergoing gender transition, to fulfill a particular process -- beyond just birth certificate -- in order to get a US passport. Why is that process not demonized as punitive discrimination? As Roy and David (and I) seem to agree, there is a reasonable middle ground that the legislature can achieve here and still provide both the freedoms the transgendered desire and the privacy/safety concerns of those in favor of the bathroom portion of the bill.

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