Running head: HB2 IN LAW AND ETHICS 1

The Public Facilities Privacy and Security Act and Its Encounters with Law and Ethics

Chandler Colclough

JOMC 393

North Carolina Agricultural and Technical State University.

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The Public Facilities Privacy and Security Act and Its Encounters with Law and Ethics

It has become of great national interest on whether transgenders should have accessibility

to use public bathrooms for the gender in which they identify with, instead of their biological

gender. This national interest did not reach its controversial peak until North Carolina issued a

state law in 2016 regarding bathroom accessibility. The state law forbid people who identified as

transgender from having access to utilize public bathrooms opposite from their biological sex.

Soon after North Carolina issued the bill, other states such as Arkansas and Tennessee suggested

similar bills, but with less controversial backlash. Different aspects of the bill highlighted the

lack of protection in terms of public safety by requiring persons to only access bathrooms that

are made for their biological gender. The overall conflict of the commonly known HB2 or The

Public Facilities Privacy and Security Act brings forth a plethora of legal and ethical arguments.

This commentary will thoroughly analyze the origins of related bills in the American Society

along with ethical and legal related evidence to support the varying conflicts within this

controversial issue.

The Origins of Gender Based Restrooms

The establishment of gender based restrooms is rooted in Paris’ early 1700s, but was not

adapted in America until the late 1800s (Rhodan, 2016). The state of Massachusetts issued the

first law which ordered toilets within the workplace to be divided amongst gender. Decades after,

the rest of the states in America set in place the related laws.

Though gender-based restrooms separate persons by their respected biological gender, the

founding purpose of these segregated bathrooms are not in place due to people’s differing

biological nor bodily characteristics. These laws are set into place because of the nineteenth

century belief of gender roles in society, particularly for women. Per Terry Kogan, the idea that a
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woman’s place was to be at home and tending to the family is one of the biggest reasons why

restrooms were segregated by sex in the first place (Kogan, 2007). This was an era in time where

labor laws in the American society were starting to be pushed for women. The idea of separating

restrooms based upon gender was a measure taken to grant a level of protection for women.

Similar concepts were set into place in other factors such as public transportation.

Within Kogan’s article, it is expressed that the establishment of gender-based restrooms

became apparent because women lacked protection in public places that were deemed to be

dangerous in a time era such as the nineteenth century. Four reasons of this separation are

presented in this article. These reasons include, to provide workers with sanitary facilities, to

protect one’s privacy, to protect the weaker body make of a woman and to protect social

morality.

The idea of gender-based restrooms have now grown to be the social norm all around the

world. Despite the shift in gender role’s today, it is still a push in efforts when it comes to the

protection of women in today’s society. The concept of gender and sexuality is constantly

changing, however, this effort is not always supported when it comes to gender-based restrooms.

Evaluating Gender-Inclusive Restrooms

Contrary to many beliefs, it is not always an act of discrimination when transgender

persons are and have been historically obligated to adjust their behavior to their biological sex.

Reports of reoccurring harassment incidents have been reported by a great number people who

identify themselves as transgender. More than 59 percent of transgender surveyors admitted to

refraining from going into public bathrooms due to the fear of confrontations or other forms of

harassment according to the 2015 U.S. Transgender Survey (Herman, 2015).

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One of the biggest debates about the proposal of gender-inclusive restrooms is whether or

not transgenders should be obligated to conform their actions to biological gender. Today, the

political movement where there are many in support of and claims to represent trans-people

contributes to the differing beliefs of the expectations of trans-people. The overall evaluation and

consideration of gender-inclusive restrooms is a tactic aimed for transgender equality and

acceptance in the American society.

The Governor of Vermont, Phil Scott signed the H.333 bill which enabled public

bathrooms in the state to be gender-neutral. Per the legislative text, this policy is only in place for

“single-user toilet facilities” instead of multiple user toilet facilities . Many transgender activists

stand firmly with this policy with hopes that there will be more progress in the future for other

states to implement similar legislation. Many of these activists believe that erasing gender

markers from restrooms to make room for gender neutral bathrooms will change the gender

binary culture in the daily life of the American society.

HB2 in Ethics-related situations

Bills that are not driven from discriminatory acts in terms of the access to restrooms have

caused an uproar in ethical concerns. One of the major concerns are of basic human rights and

when it is and is not implemented in transgender related issues. Those who are opponents to bills

such as HB2 often stand firmly on the belief that there are ethical problems from these laws

considering they have negative impacts on the transgender community.

Basic human rights set the foundation on how others are respected and treated in society.

In order for transgenders to be treated as equal human beings, it is important for there to be anti-

discriminatory driven laws and policies such as equal access to public restrooms and facilities to

ensure human rights are guaranteed (Cortes, 2016).

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Those who stand against the HB2 bill stress that these laws are discriminatory to the

transgender community regardless of its components. They emphasize that these acts of

discrimination often lead to things such as violence and exclusion for transgenders in society.

These acts can also interfere with trans-people’s access to things such as healthcare. Opposers of

these discriminatory legislation often suggest that society should ensure protection over the

transgender community by aiming for laws that consider their protection over public

environments such as public bathrooms (Reisner, 2015).

One of the most significant opponents of the HB2 bill is the NBA. In response to the

placement and controversy around North Carolina’s HB2 bill, the NBA decided to pull the 2017

NBA All-Star game from Charlotte, North Carolina. The NBA league issued a statement in

support of trans-people following their withdrawal from having Charlotte as the host city for the

NBA All-Star game. The statement emphasized that the core values of the league are to display

diversity, fairness and inclusiveness while respecting others despite opposing perspectives

(Aschburner, 2016). In the light of such controversy, the NBA Commissioner, Adam Silver

expressed that the HB2 bill was problematic and that he is willing to seek a solution with North

Carolina legislation despite the lack in progress in resolving the issue.

Today the NBA has now considered Charlotte, North Carolina as the host city for the

2019 NBA All-Star Game. A compromise was made regarding the law which partially removed

influences of the HB2 regulating the discrimination protections for the LGBTQ community.

Although the bill itself did not get repealed entirely, Silver believed that since the most outraging

aspects of the bill were modified, further measures to fix the issue will happen in the future. The

minimal adjustments of the bill still does not satisfy key opponents of the law. The Equality NC

and the Human Rights campaign is questionable on if Charlotte or the state of North Carolina
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have taken any measures for protection for non-discriminatory policies for the LGBTQ

community despite the readjustments of the HB2. Nevertheless, the NBA were one of the most

recent sports leagues in 2017 to return its events to the state of North Carolina. The Atlantic

Coast Conference as well as the NCAA have reconsidered returning their events to the state of

North Carolina due the modification to the law (Press, 2017)

Legislative Arguments of the Bill.

Whether it is in support or against the HB2 bill, there have been plenty of legislative

arguments which contributes to one’s stance on the issue of accessibility to public facilities in

consideration to gender. Regardless of the stand point of the issue, both perspectives are rooted

from the Fourteenth Amendment’s Equal Protection and Due Process clauses. While the

Fourteenth Amendment ensures due process and equal protection for all American citizens it did

not always consider this in rights for the transgender community (Darmer, 2010).

The ruling of the Obergefell v. Hodges case has been a point of reference for the

supporters of transgender rights. In this landmark decision, it was ruled that there is a guaranteed

right for same-sex couples to marry because of the Fourteenth Amendment clauses of Equal

Protection and Due Process. The larger number of opinions stood firmly in defense that liberty is

ensured for all whether it is inclusive of those who consider and define their identity (Murray,

2016). While there has not been any Supreme Court rulings specifically for public bathroom

accessibility for the transgender community, advocates for transgender rights believe that

Obergefell v. Hodges is a significant precedent for the future of potential Supreme Court rulings

of this controversial matter.

Overall, logistically speaking, there is no scientific proof that enabling trans-people the

right to utilize the restroom with the gender in which they identify with. Although arguments
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advocating and opposing transgender restrooms continues to be a problem, steps are being taken

to improve this issue and make transgenders feel less troubled by which bathroom they decide to

use.
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Works Cited

Aschburner, S. (2016, July 21). nba.com. Retrieved from www.nba.com:

http://www.nba.com/2016/news/features/steve_aschburner/07/21/nba-moves-2017-all-

star-game-from-charlotte/

Cortes, D. (2016). Transgender social inclusion and equality: a pivotal path to development.

Darmer, M. K. (2010). "Immutability" and Stigma Towards More Progressive Equal Protection

Rights Discourse. Journal of Gender, Social Policy & the Law, 53.

Herman, J. (2015, December 17). Executive Summary of the Report of the 2015 U.S.

Transgender Survey. Retrieved from http:// transequality.org:

http://transequality.org/sites/default/files/docs/usts/USTS-Executive-Summary

Kogan, T. (2007). Sex Seperation in Public Restrooms: Law, Architecture, and Gender. Michigan

Journal of Gender and Law, 5.

Last Name, F. M. (Year). Book Title. City Name: Publisher Name.

Murray, M. (2016). Obergefell v. Hodges and Nonmarriage Inequality. Calif. L. rev. 1207, 104.

Press, A. (2017, May 24). nbcsports. Retrieved from www.nbcsports.com:

https://www.nbcsports.com/bayarea/warriors/after-postponement-due-hb2-law-charlotte-

host-2019-all-star-game

Reisner, S. (2015, July 29). wiley online libray. Retrieved from http://onlinelibrary.wiley.com:

https://onlinelibrary.wiley.com/doi/full/10.1111/1468-0009.12127

Rhodan, M. (2016). Why Do We Have Men's and Women's Bathrooms Anyway? Journal Title,

Pages From - To.

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