MRBlog | North Carolina’s “Bathroom Bill” is a Defining Struggle



By Thomas J. Whitley

What is often overlooked in our commentaries on the struggle for money and power is that these are often attained by winning the battles over definitions.

This was true with regard to how the U.S. defined black people so as to keep them classified as less than full persons, not able to vote and not worthy of equal rights. This was true with regard to how women have been defined in the U.S. so as to value their work less than that of men. This was true of how gay people were defined so as to present them as deviant and dangerous. And this is true of North Carolina’s discriminatory “bathroom bill,” over which the state has sued the federal government.

In case you’re just catching up on this saga, on March 23, the North Carolina General Assembly called a special session to pass the “Public Facilities and Security Act,” which Governor Pat McCrory signed into law that same night. Among other things, this Act required public agencies to designate multiple occupancy bathrooms for use only by those with a corresponding “biological sex,” which the Act defines as that which is “stated on a person’s birth certificate.” The backlash to this was intense. PayPal stopped a planned expansion in North Carolina and other companies are also pulling their business out of the state.

Then, on May 4, the Department of Justice sent Governor McCrory and other NC leaders a letter saying that the Act violated Title VII and the Violence Against Women Act and called for action to be taken by the state by May 9.

On May 9, Governor McCrory reiterated his belief that the Act does not discriminate against transgender persons and filed a suit against the federal government seeking an injunction against the Department of Justice. The Department of Justice then filed a counter-suit on the same day.

In his suit against the federal government, Governor McCrory holds that the Act is not discriminatory on definitional grounds.

North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgendered status.

Never mind that the same argument could have been made to support poll taxes and heteronormative marriage laws, but I digress.

For McCrory, the Act cannot be discriminatory because you cannot clearly define “gender identity.” He said during a Fox News interview Sunday that “there is no clear identification or definition of gender identity.” He also said,

We can definitely define the race of people. It’s very hard to define transgender or gender identity.

That is, transgender people cannot be considered a protected class because the class cannot be defined. Though of course he has already defined the class by singling out those people whose gender identity does not correspond to their “biological sex.” Linking one’s gender to the sex that is marked on one’s birth certificate is also a problematic means of defining gender in numerous situations, and especially for those who are born “intersex.”

Governor McCrory’s entire argument hinges on questions of definitions. Transgender persons, McCrory points out in his suit, are not recognized as a protected class in Title VII. Title VII defines, that is, delimits, those groups that can be considered protected classes. Further, for McCrory, not only would congressional action need to be taken to define transgender persons as a protected class, but transgender persons cannot be defined as such because “there is no clear identification or definition of gender identity.”

This focus on definitions may seem trite, but as French sociologist Pierre Bourdieu famously recognized in Distinction, “the fate of groups is bound up with the words that designate them.” McCrory and those who support the Act must spend a significant amount of energy creating and maintaining distinctions between transgender persons and non-transgender persons in order to not-so-subtly connect transgender persons with molesters and maintain their own gender identity.

There’s a reason, in other words, that this was called a “security” act and why McCrory and others incessantly refer to the safety of women and girls when speaking to the need for this Act. The gender identity of McCrory and other white male lawmakers in North Carolina has apparently been called into question by those who identify as male though who may not share the same genitalia as McCrory and by those who may share the same genitalia as McCrory but who do not identify as male. Traditional gender stereotypes are breaking down and many see it as imperative to reassert them. Thus, McCrory and other males supporting the Act must cast themselves as the strong men who will protect the inherently weaker women and girls. Phalluses equal strength and power, after all. Or something like that.

There is, to the minds of many, a veritable war being waged against the way we define one of the most intimate parts of who we are, and McCrory will not stand for it. His struggle over definitions in the minor is in service of this struggle over definitions in the major. What remains striking is that McCrory is able to clearly identify a segment of the population as other and as potentially dangerous while maintaining that this group is difficult to define.

His position, though, has enjoyed more than a modicum of support among other (Republican) lawmakers and some conservative clergy. This should not surprise us. For, as Bourdieu also noted, this time in Language and Symbolic Power,

The distinctions that are the most efficacious socially are those which give the appearance of being based on objective difference.

And what could appear to be more based on objective difference than one’s physical genitalia? Yet it is precisely when someone presents something as natural and given that we should want to pull the curtain back to discover what they stand to gain or lose.


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