The text of HB2 was released the morning the emergency session was called. It took all of 10 hours between the time of formal introduction and when the governor signed it. LGBT groups and individuals asked Gov. McCrory to meet with them before he took action on the bill. My understanding from folks on the ground is that those calls were met with silence.
Sent from my iPhone On Mar 31, 2016, at 9:49 PM, Paul Finkelman <paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>> wrote: Mark: I agree with much of your post, and you and I may agree that the men in those pictures should use the men's room. But unless those men have had their birth certificates changed, which as I pointed out, may be legally impossible, the state of North Carolina (and Mr. Esser) would in fact question their right to use the men's room, and as best I an tell, then can be prosecuted for doing so. You write below: "I don’t think Will was changing the subject. He was addressing a part of the subject to help provide context. His information helps to show that people on both sides of these issues can be clueless or insensitive or worse. I’m not sure that many of us knew about the Charlotte ordinance; I didn’t." But your later post shows that these arguments of Mr. Esser are clearly wrong about showers and other facilities. And another post shows the Charlotte ordinance to be consistent with out laws around the country. I appreciate your desire to make a case for balancing here. And listening to everyone's point of view. But, as you noted in a later post, the Charlotte ordinance exempted showers -- the red herring argument that Mr. Esser made -- and is irrelevant to the North Carolina law. Moreover, while the city of Charlotte may be listening to all points of view, it does not appear that North Carolina as a state is doing so. Does anyone know if the legislature held hearings on this law, and invited representatives from the LGBT community? Did they hear from Transmen and Transwomen? Did the legislature consider the evidence that transmen and women have a higher suicide rate than most other groups in the nation and face much more violence, in part because of discrimination? Did the legislature look at the inability of transmen and transwomen (as well as others in the LGBT community) to find jobs and housing? I don't know the answer here, but perhaps people in NC can help us out. ****************** Paul, I don’t think Will was changing the subject. He was addressing a part of the subject to help provide context. His information helps to show that people on both sides of these issues can be clueless or insensitive or worse. I’m not sure that many of us knew about the Charlotte ordinance; I didn’t. In California, the Boys Club organization was forced to become the Boys and Girls Club, because as a place of public accommodation it was prohibited from serving only boys. I don’t know what the case may be in North Carolina. In some facilities there are open showers, at least there used to be, and remodeling to make all showers and other facilities single-use may not be practicable. Many men’s rooms have urinals, of course, that are not enclosed. As people much wiser than I have pointed out, the making of an error in one direction does not mean that an error cannot be made in the other direction. It appears that the North Carolina legislature reacted badly to the actions of some extraordinarily “progressive” locals in Charlotte, who thought that separate men’s and women’s restrooms and shower facilities were a mark of benighted primitive prejudice. It’s not quite clear to me how a place of public accommodation should decide who should be allowed to use men’s and women’s facilities. For the most part people will just be sensible and will use the facilities appropriately so as not to make others feel uncomfortable and so as not to violate others’ concerns about sexual modesty. It shouldn’t be illegal for a restaurant or sports stadium to mark one restroom “Men” and another “Women;” apparently the Charlotte ordinance would prohibit that. I’d really rather that my daughters know which room to avoid so that they do not walk in on a man using a urinal. Of course the men whose pictures you attached to your post should use the men’s room, whatever a birth certificate might say. No one would question their doing so. Presumably if one of them did not have male “plumbing” then he would use an enclosed stall in the men’s room, and no one would care. It would be insensitive and violative of at least some women’s sense of sexual privacy for them to use the women’s room; I think that was your point, or at least it may have been. (That’s not to say that only women should have their sense of sexual privacy respected.) So all that the North Carolina legislature should have done on that issue, it seems, was to preempt the Charlotte ordinance so that proprietors of public accommodations could continue to have separate men’s and women’s restrooms, shower rooms, saunas, etc. Assuming that men and women, transgender and otherwise, would then have acted reasonably, which I would assume, there would be no problem. With regard to the other part of the legislation -- setting antidiscrimination laws at the state level -- there are good faith arguments for doing so, especially if the legislature is willing to consider the need for statewide antidiscrimination protections for people with characteristics other than those traditionally specified in anti-discrimination laws. The cities and counties that would adopt ordinances prohibiting discrimination against LGBT persons may be the cities and counties where such protections are least needed. Social pressure may be somewhat effective in those areas, though not in the areas least likely to adopt such ordinances, which argues for statewide consideration of these matters. The level at which laws are made is always a problem in an extended democracy. I don’t have any general solution to the problem. Local laws sometimes can be more oppressive than laws made at a higher level. Consider homeowners’ associations. A social environment in which a person is permitted to preserve his or her own sense of sexual privacy, within reason, is generally speaking a good thing. So I am not thrilled when cities permit nudity on the streets. Reasonable people can distinguish between prohibiting public nudity and requiring the wearing of burqas. Best wishes, Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Thursday, March 31, 2016 2:40 PM To: Will Esser; Law & Religion issues for Law Academics; Eugene Volokh Subject: Re: The Charlotte City Ordinance and Religious Freedom American obsession about bathrooms is curious in itself. In France (where I taught to summers ago) there are simply rooms with single stalls. Men go into them; women go into them; the do their business and leave and there are sinks which both men and women use. Your issue of showers seems like a red herring; how is it relevant? (I am confused about the girls in the YMCA since they usually go to the YWCA, but then maybe that are merged in Charlotte). In any event, why change the subject? The issue is not Charlotte's ordinance, it is a state law which says that someone who has a driver's license, passport, etc. etc. etc. saying she is a woman, MUST use the Men's room and vice versa. I sent the list pictures of transmen, who look pretty much like Men. But under the NC law they have to use a woman's room. You did not address the "birth certificate" issue and the fact that if you were born in Texas (and some other states) you can NEVER get a new birth certificate; and in NC it requires expensive and unnecessary surgery, which makes it impossible for many transpeople. Why not address the issues of the new state law, which are flagrantly directed at trans (and gay) people. If the Charlotte ordinance was "over the top" as you put it (for the sake of argument I am accepting your claim that it would require coed showers), the answer was to fix it with a state law. Instead the state has used this opportunity to make war on trans and gay people in the name of religious liberty. But, you have not addressed the issue that is on the table -- it is the state's new law which goes out of its way to discriminate. Are you in favor of that? ****************** Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 CANADA paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> c) 518.605.0296 and Senior Fellow Democracy, Citizenship and Constitutionalism Program University of Pennsylvania Call Send SMS Call from mobile Add to Skype You'll need Skype CreditFree via Skype ________________________________ From: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> To: Paul Finkelman <paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; Eugene Volokh <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> Sent: Thursday, March 31, 2016 5:20 PM Subject: The Charlotte City Ordinance and Religious Freedom Paul, My main point was how truly radical the Charlotte City ordinance was in entirely doing away with unisex bathrooms in public accommodations. (I trust you are not taking the position that it is advisable public policy to allow non-transgender, straight boys into the girls showers in the YMCA?) The point was that the Charlotte City ordinance was entirely over the top. People can have a healthy debate about whether the NC law should go farther in providing allowance for changes to a birth certificate, but that's a very different debate than entirely doing away with unisex bathrooms. The Charlotte City Council used a club when they should have tried a scalpel. To turn this back to religion and the law, let's assume that the Charlotte City ordinance had gone into place as drafted (i.e. a non-discrimination provision that does not allow discrimination on the basis of sex with no exceptions for bathrooms). The YMCA is defined as a public accommodation under the ordinance and it is sued when it refuses to allow boys into the girls' showers. The YMCA argues that it won't let the boys into the girls showers based upon its religious principles which flow from the Bible, including a prohibition on pre-marital sex and an obligation to protect youth from temptation. How do listserv members think that comes out? Isn't this an example in which the religious principles of the YMCA should clearly trump the non-discrimination provision? (Again, this is not a fictional hypothetical. That is actually the ordinance the Charlotte City Council passed and which would have gone into law but for the NC legislature's action). Will Will Esser _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
