Transgender Debate: N.C. Legislators Will Define Who is Male or Female

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GOP legislators in North Carolina will keep their legislative power to decide who is male and who is female, amid furious opposition from gay and transgender advocates and their progressive allies, who say they should have the power to define people’s legal sex, regardless of biology.

That’s the core political dispute in the state’s emotional argument over “gender identity” and “bathroom rights” for people who say they are transgender, said Jim Quick, a spokesman for the NC Values Coalition. The fight “is 100 percent a push [by progressives] to eradicate the distinctions between male and female,” he added.

On Wednesday, Dec. 21, the state legislature decided to preserve its 2016 Public Facilities Privacy & Security Act, which was dubbed “HB-2” by opponents. That law establishes the legal distinction between male and female in the state, so aiding routine privacy and security in single-sex bathrooms and shower rooms throughout the state.

The dispute began when the city of Charlotte passed an anti-sex ordinance which effectively eliminated the legal and cultural distinctions between the two sexes. It eliminated the distinctions by allowing people who simply say they are transgender to use the bathrooms and shower rooms reserved for members of the other sex. The city’s ordinance did not set any procedures for testing or registering each individual’s claims of an opposite-sex “gender identity.”

The state legislature responded in March with a Public Facilities Privacy & Security Act, which was dubbed “HB-2” by opponents. The state law affirmed privacy rights for men, women, boys, and girls, by preserving the single-sex status of government-operated restrooms and shower rooms in schools and government buildings. But the compromise law also set a clear rule which allows the relatively very few people who want to live as members of the other sex to switch their legal sex. The state’s law says people can switch their legal sex after undergoing medical procedures and formally changing their birth certificate.

This week, the new Democratic governor, Roy Cooper, urged the GOP-run legislature to drop the HB-2 sex-distinction law in exchange for a promise from Charlotte to scale back its no-test ordinance. The legislature declined the offer, because eliminating the state law’s would allow progressive city councillors and judges to subsequently blur the distinctions between the sexes by inventing new legal rights for people who claim to be be transgender.

Gay advocacy groups are already supporting multiple lawsuits which urge federal judges to grab control of the issue by declaring that people have a constitutional right to change their sex. In practice, that right would require the federal and state governments to enforce the progressives’ new set of rules about the sexes.

However, the judges may back away from the dispute if state and federal politicians say they and the voters decide who should be treated as male or female. In North Carolina, the HB-2 law has shown that the legislature wants the power to decide the issue. In line with public opinion, the legislature is preserving the popular demand for clear distinctions between male and female sexes.

The progressive opposition to the North Carolina legislature is led by the D.C.-based Human Rights Council, in cooperation with President Barack Obama’s administration. “Transgender men are men — they live, work and study as men. Transgender women are women — they live, work and study as women,” declared Vanita Gupta, the acting assistant attorney general for the Department of Justice’s civic rules division, in a May press conference.

The civic distinctions between equal and distinct male and female Americans has long been a foundational part off U.S. law and culture, in part, because it allows sports leagues for the two physically different sexes, reserves some prestige-boosting prizes for boys or girls, enables single-sex refuges for battered women and much else. Most importantly, the distinction supports the social handrails that guide boys and girls through the sexual risks of puberty towards mature parenthood.

Progressives, acting as allies to gay and feminist groups, are determined to replace the evolved civic practices. They want government to downplay the “gender binary” — the normal biological, cultural and legal sex distinctions in a heterosexual society of men and women, children and parents — and instead favor the idea of “gender fluidity.”

The classification of people into the “gender binary” of male or female is based on measurable biological differences, on clear differences in genitalia and on the fundamental power of a man and women to jointly create new life.

In recent years, however, science has found a tiny proportion of people who have overlapping male and female characteristics, allowing gay advocates to claim that civic support for the “gender binary” is both obsolete and unfair to the minority. Currently, only about 1 in every 2,400 adults legally change their name from one sex to the other, according to a recent study of 2010 census data.

In their fight against heterosexual binary, the progressives’ short-term goal is tout the idea of “gender identity,” which says a person should be treated by government as member of the opposite sex if the person adopts the appearance and practices of the opposite sex. 

Society’s acceptance of the “gender binary” discriminates against sexual minorities, say progressives. On May 9, Obama’s Attorney General, Loretta Lynch, slashed at the state’s law, and compared it to laws that imposed racism: 

This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation. We saw it in the Jim Crow laws that followed the Emancipation Proclamation … State-sanctioned discrimination never looks good in hindsight. It was not so very long ago that states, including North Carolina, had signs above restrooms, water fountains and on public accommodations keeping people out based upon a distinction without a difference. We have moved beyond those dark days, but not without pain and suffering and an ongoing fight to keep moving forward.

Progressives have had some success in North Carolina. For example, gay advocacy groups used their influence among universities and companies to impose an partial economic boycott of the state after HB-2 was passed. That boycott helped Democrats to narrowly defeat the GOP Gov. Pat McCrory in the November election — but that victory has been trumped by the legislature’s decision to keep the Hb-2 law. 

In the longer term, progressives want to promote the idea of “gender fluidity,” where government would aid people who switch their appearance and behavior from one sex to the other, or to somewhere in between.

Thus Obama’s administration, progressive school officials, university administrators,  and gay advocacy groups are using their power in K-12 schools to disestablish society’s normal distinctions between male and female. For example, Obama’s rules say school officials cannot tell parents when their children wish to secretly experiment with opposite-sex behavior and dress in school.

But the progressives’ hostility to the heterosexual binary of male and female is being countered by worried parents, consumersmainstream civic-society groups, some GOP politicians, social-conservative groups, and by some feminists and gay advocacy groups who fear a focus on gender fluidity undermines the status of single-sex male and single-sex female relationships.  Some transgender people dislike the “gender fluid” agenda because it minimizes their claim to be fully male or female.

The issue is exploding in various states, including Texas, Ohio, Washington State, Virginia and Kentucky.

Polls show the progressives’ national push against male and female is strongly opposed by the public. In fact, the broad opposition to the “gender fluid” ideology helped defeat Hillary Clinton in the 2016 election, Obama admitted in a mid-December radio interview.

There are clearly, though, failures on our part to give people in rural areas or in exurban areas, a sense day-to-day that we’re fighting for them or connected to them.

Some of it is the prism through which they’re seeing the political debate take place. They may know less about the work that my administration did on trying to promote collective bargaining or overtime rules. But they know a lot about the controversy around transgender bathrooms because it’s more controversial, it attracts more attention.

Once in office, President Donald Trump’s deputies are expected to reverse Obama’s pro-transgender push against the “gender binary.”

But mainstream legislators in the Hill may also be forced to take a side in the national dispute, which is being steered by progressive lawyers towards the Supreme Court. The court — unless opposed by voters and legislators — can work with lower-tier progressive judges try to establish the “gender fluid” ideology by creating new legal rights for people who wish to switch or flip-flop between the two biological sexes. 

GOP legislators should announce their opposition to any effort by federal judges to decide who is male or female, says Daniel Horowitz, editor of Conservative Review. 

If we can’t defend the most immutable laws of nature from the Flat-Earthers, there is no limit to the inimical social transformation they will foist upon us under the threat of economic boycotts … This is about a lot more than bathrooms. This is about eradicating any uniqueness of the two genders.

In North Carolina, leading Republicans are leaning into the national fight against the progressives’ anti-sex ideology after McCrory’s defeat.

“No economic, political or ideological pressure can convince me that what is wrong is right,” Republican Lt. Gov. Dan Forest said statement supporting the state’s compromise law. “It will always be wrong for men to have access to women’s showers and bathrooms. If HB2 is repealed, there will be nothing on the books to prevent another city or county to take us down this path again.”

Follow Neil Munro on Twitter @NeilMunroDC or email the author at


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