North Carolina’s Anti-Transgender Bathroom Law Just Got Worse

As if North Carolina’s legislation wasn’t idiotic enough, lawmakers are toying with a provision that would give only a few more trans people access to public restrooms.

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North Carolina lawmakers may try to create a new type of government documentation called a “certificate of sex reassignment” to allow a tiny minority of otherwise-banned transgender people to pee in public restrooms. What could possibly go wrong?

Facing backlash over the notorious anti-LGBT law they passed this March, which requires transgender people to use the restroom matches their birth certificate, legislators in the Republican-controlled House are working on a new draft of House Bill 2 (HB 2) in an effort to keep the 2017 NBA All-Star Game in Charlotte, WBTV reported Tuesday.

But a leak of the draft reveals that they are still dreaming up horrific new ways to restrict public bathroom access.

“An individual who was born in another state or territory of the United States that does not provide a mechanism for amending a current certificate of birth or issuing a new certificate of birth to change the sex of an individual following sex reassignment surgery … may request a certificate of sex reassignment from the State Registrar,” the draft reads.

On the surface, this may look like a concession that would allow more transgender people to access public restrooms in North Carolina.

But in reality, this proposed certificate would only apply to a tiny minority of transgender people, namely those born in Tennessee, Idaho, Kansas, and, in some cases, Ohio who have since had sex reassignment surgery (SRS). These are the only four states in the country that do not allow transgender people to alter their birth certificates even after SRS.

Special “certificates of sex reassignment,” then, would only help about seven percent of transgender people born in 2014, based on Kaiser Family Foundation statistics showing the number of births by state.

Even then, the certificates would only be useful for the subset of that seven percent who have the money or the need for SRS. Only about one in four transgender people have a birth certificate that matches his or her gender. Private insurers often deny coverage of SRS to transgender patients, making North Carolina’s requirements even less accessible.

If the proposed draft becomes final and goes into effect, North Carolina would also further reinforce the bizarre double standards it already imposes on its transgender residents depending on their state of birth.

Under HB 2, for example, a transgender woman born in Tennessee who has undergone SRS cannot legally use a public women’s restroom in North Carolina because the law measures her gender by her birth certificate. But a transgender woman born in California who has not undergone SRS can legally use the ladies’ room provided she has changed her birth certificate back home.

Adding these proposed “certificates of sex reassignment” to the mix would, in effect, require transgender people born in four states to undergo costly surgery in order to use public bathrooms even though transgender people born in states like California or New York are not held to the same standard.

North Carolina is already being sued by the Department of Justice. The new proposal sounds like another lawsuit waiting to happen.

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As the Greensboro News and Record noted, another ethical disaster in the making is that North Carolina would “effectively create a state registry of those who have had [SRS],” raising privacy concerns for transgender people who often face severe consequences when they are outed to their family or their employers. In effect, it would give the North Carolina state government an incomplete list of transgender people in the state.

The draft legislation tries to circumvent these ethical concerns by declaring that the certificates will not be “public records” and that they will only be available to transgender people or their authorized representatives. But if they are intended to be used as permission slips to enter public bathrooms, they’re not exactly private records, either.

The new draft of HB 2, as the News and Record reported, also includes some minor changes to the law’s language around employment discrimination. It would also enhance criminal penalties for sex offenses committed in public restrooms, as if lawmakers expect an increase in such offenses if and when more transgender people are allowed to use public restrooms.

The truth is that there are zero reported incidents of transgender people harassing non-transgender people in a restroom. Over 200 cities and 17 states, as Buzzfeed’s Dominic Holden frequently reports, have had no issues with predators using transgender protections as an excuse to commit offenses in restrooms—a bogus scare tactic frequently used by opponents of transgender civil rights. Enhancing penalties is one thing but associating those enhanced penalties with an anti-transgender bathroom measure is disingenuous.

It’s no surprise that advocates of LGBT civil rights saw right through North Carolina legislators’ supposed concession to the community.

Equality NC Executive Director and House Representative Chris Sgro called the leaked proposal a “backroom deal” that “still discriminates against transgender North Carolinians.

“HB 2.0” was how the Human Rights Campaign dismissively referred to the draft, calling for a “full repeal of this hateful law” instead.

And the American Civil Liberties Union, which is suing North Carolina Governor Pat McCrory over the law, labeled the draft a “sham.”

It looks like North Carolina legislators might have to try a little harder if they want to keep that All-Star Game. The new proposals coming out of the House don’t repair anything—in many ways, they make HB 2 worse, not better—and they still leave the discriminatory lies at its heart fully intact. This isn’t fixing North Carolina’s LGBT problem; it’s shuffling deck chairs on a sinking ship of a law that cannot be saved.