Opinion: The HB2 Disagreements No 'Dialogue' Can Resolve

Talking about gender identity and the law can change minds—but not on these two points

Time Warner Cable News screencap Governor Pat McCrory on Tuesday after his HB2 executive order.

Shortly after he issued an executive order Tuesday on House Bill 2, Governor Pat McCrory told Tim Boyum of Time Warner Cable News that the time was right for “dialogue” between supporters and opponents of the new law. “Why don’t we have a conversation about it and see our differences, and understand our differences and understand the passion?,” McCrory said. “Isn’t that what we should have instead of just threats and signs and soundbites on the news and headlines? Let’s have a conversation.”

The governor said this with a straight face and an astonishing amount of nerve—he signed HB2 into law three weeks ago, and now he wants to “have a conversation”?—but that’s not what I want to highlight here. Even taking McCrory at his word, a dodgy proposition, all the dialogue in the world won’t resolve two fundamental differences that judges will have to referee.

The opposition plane basically flies on two wings. One is the free market-purist, libertarian ideal of limited government regulation of a private entity—business or nonprofit—within its jurisdiction. This, which McCrory refers to in his interview, explains the language in the law that prevents local governments from establishing their own nondiscrimination policies and employment standards for private entities. (Remember U.S. Senator Thom Tillis’ faux pas last year on mandatory hand-washing? The same kind of thinking was at work.)

Under the law, businesses and nonprofits are free to have unisex bathrooms. They’re also free to refuse to serve or employ gay and transgender people at will. It’s up to them. Local governments also can’t refuse to hire contractors that don’t pay their employees a minimum wage that exceeds the state’s.

There’s no middle ground here. You either accept the idea that local governments can or should impose those standards, or you don’t.

The other wing is the social-conservative, fundamentalist-Christian idea that “transgender” is … not really a thing.

One of the most interesting aspects of HB2: It doesn’t include the word “transgender.” There’s a reason for that. The social conservative argument rests on the assumption that a transgender person suffers from some mental illness that any nondiscrimination law would privilege, and that it’s simply not a legitimate status. Thus the oft-repeated line about the law banning “men in women’s bathrooms”—if you’re starting from a baseline that transgender women are men, and vice versa, then it follows that a transgender man who through hormone treatments and a fitness regimen has acquired the size and build of Cam Newton must use the ladies’ room, because “he” is a woman.

There’s some inconsistency in opponents’ arguments. You’ll hear some of them utter the “men in women’s bathrooms” line in one breath and insist in the next that they don’t intend to discriminate against transgender people, which suggests that they’re willing to accept the idea in general but not the law, or just confusion. (Interestingly, McCrory in his interview refers to “the unique needs of someone who’s transgender.”)

But this is another fundamental difference no open discussion is likely to resolve. If you believe in your heart of hearts that transgender people are willing to upend their lives; undergo surgery; spend months, if not years, in treatment for that surgery; and prepare themselves to endure the resulting stigma solely because they’re mentally ill or have decided on a whim to be the opposite sex for a while—well, there’s not much I or anyone else can do to convince you otherwise. That’s another key point, by the way: I’ve heard some opponents claim that the American Psychiatric Association classifies gender dysphoria as a mental disorder, which it does, but with this distinction: “[G]ender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition”—in other words, the depression and anxiety that the social stigma can bring on as a result of the condition, not the condition itself.

So it’s actually a compelling argument against gender reassignment as a momentary flight of fancy. Who would willingly put themselves through all that because of a mood swing?