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As a North Carolinian and sometime professional person, I have had the chance to see both sides of the now globally notorious Bathroom Debate of 2016. At a gender studies conference I attended, the host urged audience members to go into “whatever bathroom you like.” But at local church and school events, I’ve personally heard great praise for “the bravery of our state legislature.”
If you get past the polemics and invective, you can hear the basic arguments on either side. The backers of the law are worried about creeps going into girls’ bathrooms with impunity. Having a daughter, I sympathize with that view. The opponents feel that transgender people don’t deserve to be stigmatized when they need to go to the bathroom like everyone else. I used to have a boss who read that the real business of America was conducted in the men’s room and — considering himself a real businessman — would try to discuss quarterly targets at the urinal, so I understand how the trans-folks feel on some level too.
I hate to say it, but Governor Pat McCrory and legislature brought this on themselves with sloppy legislating. First, the bill included an unrelated provision (that McCrory has now said should be repealed) that eliminates the right for anyone to bring a discrimination action in state court. One could still bring an action in federal court. All good conservatives are also good federalists so, as a good conservative, I would rather these cases tried by a North Carolina judge than a federal one. That’s better for the plaintiff, the defense, and for justice.
The bathroom provision has an odd, relevant aspect to it. It says you must go to the bathroom listed on your birth certificate. We all know that nobody carries their birth certificate around with them, so this seems a little odd at first and, of course, transgender people feel that their birth gender was in error. As it happens, an actual (post-operation) transsexual would not have a problem, because there was already a clause in state law that said that a person who had a sex change operation could petition a court to have their gender changed on their birth certificate (see § 130A-118). I am guessing — and just guessing — that the legislators knew that and mirrored the bathroom statute to tie to the birth certificate standard in the existing transsexual law.
So, here is my modest proposal: Allow transgender people to make the same petition to our good old North Carolina courts to change their birth certificates as transsexual people (i.e., give a judge discretion over the matter even if the applicant hasn’t had sex-reassignment surgery). This would allow a judge to make a reasonable judgment about the seriousness of the person’s desire to identify as a different gender and permit them to change their birth certificate. I might also change the documentation requirement to drivers license or state ID, for the commonsense reason that the drivers license is what everyone carries around with them. The motor vehicle department already uses the birth certificate as a proof of identity for getting a drivers license, so anybody who gets their birth certificate changed could also get their drivers license changed.
This compromise keeps the creeps out of the girls bathrooms and maintains the probity of the separate sex bathrooms that the vast majority of people find appropriate for good cultural, religious, and practical reasons. It also gives sincere transgender people the right to identify as they choose and the respect of society for their choice, if they are serious enough to go before a judge to make it official.
As a conservative, I am not against change. But I do expect change to be rational and narrowly tailored to the problem at hand. In theory, my compromise solves the problem, addresses the concerns of both sides, and would save my tax dollars for real services instead of a protracted court fight between the federal and state governments.