The Cruelty of NCs House Bill 2

May 6, 2016   //   Politics, Tolerance, Top Story

 

Introductory Remarks

This piece is being written from the perspective of three different sets of experiences.  The first is that of having been an employer and founder of a North Carolina corporation, a company that was awarded the Cary Chamber of Commerce Small Business of the Year as well as the Greater Raleigh Chamber of Commerce Future 30 Award.  Secondly, a career that was spent in biomedical research and product development, both in the academic setting as well as eventually at executive and corporate officer levels in the pharmaceutical and biotechnology industries, where we evaluated conditions affecting various populations and developed interventions.  And finally in human rights and civil rights activism largely focusing on discriminatory treatment of both racial and ethnic minorities as well as the LGBT community.

It is recognized that some of the issues presented below including, but necessarily limited to, gender dysphoria and gender non-conformity, are complex matters that do not lend themselves to a thorough review within the limited confines of this article.  So apologies in advance to any medical professionals or transgender advocates who might feel certain topics have been short-changed either in content or length.  However, the intent here was to provide enough information for readers to understand the several issues that make North Carolina’s House Bill 2 (HB2), exceptionally cruel to the already vulnerable transgender population.  This includes how the law increases risk of abuse to those individuals, up to and including loss of life at the hands by assailants as well as their own through suicide.  As the article is intended for a mix of readership, a variety of references have been used including, and again not limited to, news media reports, an article from Psychology Today, published surveys, a National Health Services (UK) publication, and some medical/scientific journal articles.

Also, as developed below, objections about the law from numerous business concerns has little if anything to do with an orchestrated left-wing attack for political correctness as proponents of the law have claimed.   The law impedes a business’s ability to recruit and retain talent, as well as protecting that talent once it leaves the workplace.  The law also places transgender employees and employers, as well as  transgender family members of any employee, at increased risk of serious, even life-threatening, abuse thus making North Carolina a rather inhospitable place to relocate or expand business.  Whereas no evidence has been found regarding assaults or unwanted sexual advances in communities that allow transgenders to use public facilities consistent with their sexual identity, there is clear evidence of existing violence and abusive treatment directed towards transgenders on both the national and state level, already involving public accommodations in the state of North Carolina.

Although there has been some discussion to roll back certain aspects of the law, such as the inability to sue for discrimination in state courts, there has been little appetite expressed from the either Governor McCrory or Republican House and Senate leadership to change the public accommodations aspect of the law; i.e., that individuals must use public accommodations consistent with the sex on their birth certificate –  the requirement that gave the law its nickname, the ‘bathroom law’.  Yet it is this very aspect of the law that increases risk of abuse to the transgender population.  What is presented below is largely devoted to this damaging aspect of the law.

Letter from Pediatric Endocrinologists Calling for Repeal of “Flawed” and “Hurtful” Bill

 group of 20 pediatric endocrinologists called on North Carolina Governor McCrory to push for a repeal of HB2 stating that the bill is “inherently flawed (the same point communicated in this writer’s previous correspondence to the legislature) and potentially harmful to a group of children we care for.”  They give multiple examples where it is impossible to assign gender at birth and how such a designation may need to change later in life. As excerpted, “This can be due to multiple biological causes such as chromosome abnormalities, abnormalities in anatomic development, environment exposures during pregnancy, genetic mutations in the synthesis and actions of adrenal and gonadal hormones, and tumors that make sex hormones.”  They further make the point that “Our patients already face major medical and social challenges and HB2 creates unnecessary hardship for these vulnerable youth” requesting that Governor McCrory repeal this “hurtful bill”.

The Plight of Transsexual, Transgender and Gender Non-Conforming Individuals

Gender Non-Conformity and Gender Dysphoria

The following sources were used to create this sub-section and supplemented where indicated: a National Health Services (UK) publication; an article published in Psychology Today; a wiki article entitled Gender Dysphoria that, although specifies certain sections needing additional work, contains many useful references, including Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, Version 7, International Journal of Transgenderism, 13:165-232 (2011) that was also used in this sub-section.  Other sources are cited as appropriate.

As recognized above, this topic is far too complex to undertake a detailed review here.   But, the important overarching point to this reviewer is that being transsexual, transgender, or gender non-conforming is considered to be largely a matter of diversity, not pathology (emphasis added – again, the same point previously made by this writer to NC legislators) – ref Int. J. Transgenderism, p.168.  From the perspective of having obtained a terminal degree in the biological sciences, biology is inherently messy (for example mutations and reproduction, a reshuffling of the deck, is a driver of evolution) and there is great variation in our characteristics from individual to individual.  Human beings do not come off a conveyor belt where those who differ from the majority should be considered rejects – yet, societally, that is what all too often occurs with members of the LGBT community.

Gender non-conformity and gender dysphoria are not the same.  Gender non-conformity refers to the extent to which a person’s gender identity, role or expression differs from the cultural norms prescribed for people of a particular sex.  Gender dysphoria (sometimes referred to Gender Identity Disorder) is defined as a condition where a person experiences discomfort or distress because there is a mismatch between their biological sex and gender identity.  The DSM-5 declassified Gender Identity Disorder to Gender Dysphoria, a move supported by researchers and many transgender people because the term ‘disorder’ pathologizes gender variance, reinforces the binary model of gender, and can result in stigmatization of transgender individuals.  Only some gender nonconforming people experience gender dysphoria at some point in their lives.  Consistent with the message delivered by the pediatric endocrinologists above, there is a growing body of evidence regarding the biological nature of gender identity that has been resisted by some physicians operating under the misconception that gender identity can be changed.  Similarly, attempts to change sexual preference (a separate matter from gender identity), known as reparative or conversion therapies (e.g., pray the gay away), have actually been held to be harmful and one organization was successfully sued under consumer fraud protections for practicing such.  A January, 2016 Scientific American article provides a useful albeit brief discussion about imaging studies and other research that supports a biological basis for transgender identity.  What defines us as male and female involves much more than anatomy at birth.

Gender dysphoria is a recognized medical diagnosis for which treatment is sometimes appropriate.  It is not a mental illness.  Treatment is highly individualized and can vary greatly from person to person.  Options include therapy to explore a person’s gender identity to find a gender role that is comfortable for them.  ”Medical treatment options include, for example, feminization or masculinization of the body through hormone therapy and/or surgery, which are effective in alleviating gender dysphoria and are medically necessary for many people.  Gender identities and expressions are diverse, and hormones and surgery are just two of many options available to assist people with achieving comfort with self and identity” (Int J Transgenderism, 13:165-232, 2011).

Vulnerability

Individuals with gender dysphoria can suffer greatly.  Some begin to adopt the appearance and mannerisms of the gender with which they identify, often at an early age.  As such they are often ostracized, both socially as well as by their family, that contributes to low self-esteem and leads to school aversion or even dropping out.  Peer ostracism and teasing are especially common consequences for boys who often show marked feminine mannerisms and speech patterns.  Relationships with parents may be seriously impaired and some males with gender dysphoria have resorted to self-treatment with hormones and have (very rarely) performed or attempted their own castration or penectomy (ref Psychology Today article, a separate published account cited here that was the subject of a lawsuit filed by the Southern Poverty Law Center on behalf of an imprisoned transgender).

Transgender youth are extremely vulnerable to a multitude of problems.  These include physical/sexual/verbal abuse, a high rate of homelessness due to family rejection/conflict, lack of access to healthcare, and bullying.   School can be an exceptionally trying experience including, besides abuse, social exclusion and isolation, and lack of support from school administrators.  LGBT youth are at increased risk of suicide and the few studies that have specifically examined transgender youth suicide have concluded that transgender youth are even more at risk than their gay, lesbian, and bisexual counterparts – in one study of transgender youth it was found that, of the youth interviewed, about half had seriously contemplated ending their lives and of those about half actually made an attempt.

Regarding suicide, in 2011, the National Center for Transgender Equality and the National LGBTQ Task Force released a survey of interviews with over 6400 transgender and gender non-conforming people (a follow-up study is due in 2016).  Excerpting: “A staggering 41% of respondents reported attempting suicide compared to 1.6% of the general population, with rates rising for those who lost a job due to bias (55%), were harassed/bullied in school (51%), had low household income, or were the victim of physical assault (61%) or sexual assault (64%).

Results of the above survey were also broken down by state and there were 121 respondents from North Carolina.  Quite the opposite of NC legislators claims about non-discrimination laws for public facilities endangering public safety, 50% of the interviewed transgender or gender non-conforming individuals reported being verbally harassed or disrespected in a place of public accommodation or service.  Additionally, as recently reported in the Charlotte Observer, a North Carolina female to male transgender was assaulted in a female restroom by a woman’s boyfriend who felt the transgender was a male (and regarding suicide, this individual also admitted to an attempt to end his life at one point).

Fear Mongering vs. Transgender Assault Victimization

Fear Mongering

PolitiFact and PolitiFact NC fact checked many of the claims made by both proponents and opponents of the law. Rep Paul “Skip” Stam (R-Apex) was ruled to have issued only a partial truth in stating “There are 31 other states and 10,000 other cities that have the same type of policies that we just passed”.  PoltiFact found differently; excerpting from the article: “Several parts of what HB2 does exist in  only two or three other states (emphasis added).  And North Carolina is the only state so far (emphasis added) to have restricted bathroom access to the gender on your birth certificate, although several other states are considering similar bills.”  Relevant to this article was a claim made by Equality NC Director Chris Sgro (now NC Representative Sgro) that was rated as Mostly True: “There have not been any public safety issues” in cities that allow transgender people to use the bathroom of the gender they identify as.  The fears expressed by legislators about sexual predators taking advantage of transgender-friendly bathrooms were not found to be based in fact.  Not one example was found in the United States, and conservative groups also could not point to any.

Media Matters has also weighed in on the matter.  ”Experts from twelve states – including law enforcement officials, state human rights workers, and sexual assault victims advocates – debunked the myth that non-discrimination laws have any relation to incidents of sexual assault or harassment in public restrooms. ”  The article provides statements from three organizations that oppose LGBT non-discrimination laws: Pacific Justice Institute, Family Research Council, and Texas Values, all warning that sexual predators would take advantage of the laws to stalk victims.  The article contrasts those statements with those made by various experts in eight other states where non-discrimination laws exist, all indicating that there has been no evidence to support fears about sexual predators.  The article also gives an example of how opponents to non-discrimination laws have fabricated stories that get picked up and published by media sources without fact checking.  The case involved the Pacific Justice Institute (designated as an anti-LGBT hate group by the Southern Poverty Law Center) that completely fabricated a story about a transgender student who harassed girls in a school bathroom, claiming that his rights trumped their privacy.  By the time the Daily Mail took down its report on the incident and the Examiner published a retraction with apology, the damage had already been done in reenforcing transphobia which is defined as” a range of antagonistic attitudes and feelings against transgender or transsexual people or transsexuality.  Transphobia can be emotional disgust, fear, anger or discomfort felt or expressed toward people who do not conform to society’s gender expectations”.

Even worse, some of these organizations have knowingly issued blatant falsehoods that reenforce unfounded perceptions about sexual minorities being dangerous (understanding here that much of the public is ignorant about the difference between homosexuality and transgenderism).  These include the Family Research Council (an American conservative Christian group) whose president, Tony Perkins, claimed that gay men are sexually predatory with children (as was thoroughly debunked by UC Davis professor of psychology, Gregory Herek) and that they try to recruit children into their ‘lifestyle’.  From the same source he additionally referred to LGBT’s as “perversion”, “immoral” and “disgusting”.   Bryan Fischer of the American Family Association (an American organization that promotes fundamentalist Christian values) has claimed that “homosexuality gave us Adolph Hitler, and homosexuals in the military gave us the Brown Shirts, the Nazi war machine and 6 million dead Jews”.  From the same source, he additionally described Adolph Hitler as an active homosexual who sought out gays “because he could not get straight soldiers to be savage and brutal and vicious enough”.  And as reported in the Washington Post, the American Family Association has also admitted to sending men into Target stores to attempt entry into women’s bathrooms (Target allows transgenders to use facilities consistent with their sexual identity).

These toxic messages are re-enforced by some legislators.  As an example, NC Representative Paul Stam, a staunch supporter of HB2, addressed a rally of supporters saying “Has the nation gone crazy?  Has the nation gone nuts?  Some people have but you haven’t”.   Rep Stam, as NC House Majority Leader, appeared on American Family Association radio with the presidents of both the Family Research Council and the American Family Association during the debate on Amendment One (the “gay marriage ban” amendment that was, in relatively short order, held to be unconstitutional).  Rather than denouncing these organizations for knowingly issuing such damaging falsehoods, Rep. Stam, simply by the status of his position as House House Majority Leader, lent credence to their toxic message by agreeing to the interview which was rather cordial in nature.  His ability to legislate in a fair and unbiased fashion regarding sexual minorities should be drawn into question.

In summary, opponents of LGBT rights have taken to baseless fear mongering, sometimes even fabricating stories and vicious falsehoods, that work to further discrimination, and even violence, against an already vulnerable population.

Transgender Assault Victimization

Assault, up to and including loss of life, is very much a reality for the transgender community, especially “transgender women of color who often grapple with both transphobia and racism.  Sixteen of the at least 20 LGBT people murdered in 2014 were people of color” 10 being transgender women of color (ref Aug 17, 2015 Time article “Why Transgender People are Being Murdered at a Historic Rate).  Included is the North Carolina case of Elisha Walker, a transgender woman of color, whose remains were found in a field several months after her murder.  In Brooklyn, NY four ‘hate violence’ crimes were reported against transgenders over a period of just two weeks with the people being threatened with death, punched in the face, slurred at, and socked with rocks.

The issue of violence directed at sexual minorities has also been examined in a report supported by the Human Rights Campaign Foundation, Hate Crimes and Violence Against Lesbian, Gay, Bisexual and Transgender People.   As stated in the Introduction and Background section (page 2), statistical information collected by the FBI consistently shows that LGB people, and those perceived to be LGB, are attacked more frequently than heterosexuals when adjusted for population size.  Although bias motivated attacks on the basis of gender identity are not tracked on the federal level, anecdotal evidence suggests that hate crimes against LGB and Transgender people are under-reported in the US as some victims do not report such offenses because they do not want to be identified (“outed”) in police reports.  The fear of being “outed” becomes important when considering that HB2 forces transgenders, some of whom have developed the appearance and mannerisms consistent with their identity, to use a bathroom opposite their sexual identity.

How HB2 Increases Risks for Transgenders

As noted above, one of the reasons associated with under-reporting of hate crimes against transgenders is the concern of being “outed” – having their name in a police or media report.  But this is just what HB2 does for some transgenders if they choose to follow the law.  Especially for male to female transgenders who have acquired characteristics and mannerisms consistent with their female identity, the law requires them to enter the male bathroom, a confined space that the NC legislature has already expressed its concerns about being an environment where harassment and assault can occur.  Although there is no evidence to date of any such assaults related to public facility use in municipalities allowing transgender accommodation, by either sexual predators or transgenders, harassment and physical assault of transgenders is well-documented.  In the above cited NCTE and National LGBTQ Task Force report , North Carolina survey respondents who expressed a transgender identity or gender non-conformity while in grades K-12 reported an alarming rate of harassment (88%) and physical assault (28%) while at school.   Overall 50% of respondents were were verbally harassed or disrespected in a place of public accommodation.

As was cited above, the Charlotte Observer published a case study of a female to male transgender, Liam Johns (picture below), designated as a female on his birth certificate, who was assaulted by a woman’s boyfriend after entering a women’s restroom.


HB2 not only removes choice for transgenders, but also the ability for some to blend in where they are most comfortable.  The risk is precisely the opposite of what proponents of HB2 claim.  The law increases the opportunity for transphobic individuals to identify, and act against, transgenders.  In fact the law creates a Catch-22 for some transgenders.  If they choose to follow the law they increase their risk of abuse, and if they don’t they could face legal penalties for not following the law (although such penalties have yet to be defined and it is unclear as to exactly how this law will be enforced).

The case of Jenna Talackova

A supportive school environment is essential for transgender, gender dysphoric and gender non-conforming children (see Ensuring the Child’s Security section).  Such was cited by Jenna Talackova, the well-documented female transgender who successfully sued to regain her status as a competitor in the Canadian Miss Universe contest;  of 61 contestants, she was reported to have been among the 12 finalists.  Although there are many articles about this individual’s journey as a male to female transgender, her interview with Barbara Walters on ABCs 20/20, that included her mother and noted female rights attorney Gloria Allred, is well worth the watch (a little over 11 minutes in duration). She was born as Walter Talackova with her birth certificate indicating male.  Since as early as she could remember she was confused and uncomfortable in a male body.  By the time she was in 8th grade she had grown her hair long and was wearing feminine attire.  She described her high school as being supportive and allowed her to use the girls restroom.  Although her mother expressed concerns about physical abuse in school, that did not happen – the abuse from other students was limited to being verbal.  (HB2 removes this option, and in North Carolina Ms. Talackova would have been required to use the boys bathroom, a requirement that could only increase risk of physical abuse).

Physicians approved Ms. Talackova initiating hormone therapy at the age of 14.  After several years of psychological counseling, at the age of 19 physicians agreed that she was a candidate for sex reassignment surgery which required a number of different surgeries.  The transformation was remarkable.

Following completion of her physical transition, she changed her legal documents to indicate female, including drivers license, passport and birth certificate.  Although there has been some reference made in the press that individuals can change their birth certificates, not all have (or can) and in some states such is not permitted.  For Ms. Talackova, as would be the case for others, there was a period of many years where she was physically and behaviorally transitioning to her gender identity.  With HB2 individuals such as Ms. Talackova would be required to use the men’s restroom in places of public accommodation.

The law not only removes choice, it clearly increases the already existing risk of transgender abuse.

Concluding Remarks

An Untenable Business Situation

Legislative proponents of the law claim that opposition to it represents nothing more than a smear campaign being driven by far left ‘political correctness’ rather than common sense in protecting women and children from sexual predators who would enter restrooms under the guise of being transgender.  Rep. Dan Bishop (R – Charlotte, NC), a sponsor of the law, claimed that opposition to the bill is based on “a media-fueled, ideological carpet bombing.”   But, speaking from the perspective of having been a business founder and owner, and thus a North Carolina employer whose corporation had a ‘zero tolerance’ policy regarding discrimination and harassment, the loss of business the state has suffered since HB2 was signed into law has little to do with ideological attacks.  Employers want to recruit and retain top talent, regardless of race, ethnicity, creed, sexual orientation or gender identity.  Although HB2 proponents claim that businesses can set their own policies, such is lost when employees step outside the business.  As detailed above, transgender employees and employers, including children of any employee who are transgender, are placed at increased risk of abuse, both verbally and physically, by the law (not to mention the loss of other rights for LGBTs under the new law).  In business, our greatest asset, our employees, get in a car and drive home at night.  This writer could not in good conscience either relocate a business to North Carolina or expand business operations in this state with this law in place.

The Untenable Claim of Religious Freedom

Beyond the business considerations, the law is exceptionally cruel and devastating in its discrimination against a minority population.  In a state that houses the Research Triangle Park and several world class medical research/teaching/treatment facilities, our legislature has enacted a law that panders to certain religious factions and organizations, for political purposes, that have demonized a minority population, some of whom suffer from a recognized medical diagnosis, gender dysphoria. The word ‘dysphoria’ refers to the anxiety and distress created from the conflict between one’s gender identity and their sex at birth, many of whom require treatment.  Yet such individuals are labelled as being sinners, perverted and immoral by certain religious factions and organizations intent on codifying their interpretation of ancient scriptures into law.  Should one wish a good example to justify our Constitution’s Establishment Clause that “Congress shall make no law respecting an establishment of religion”, HB2 would be it.

Regarding the calls on the political right for ‘religious freedom’, does that include the demonization of individuals suffering from a recognized medical diagnosis, ostracizing and stigmatizing them as a matter of religious conscience?  For any individuals holding such beliefs they might be well-served by placing the shoe on the other foot.   Should they have a child suffering from such a conflict, a study has shown that rejection in the home (verbal harassment, physical violence, exclusion from family activities, and prevention of children’s access to the LGBT community) notably increases the risk of the child adopting dangerous behaviors, including being over 8 times more likely to attempt suicide.  Speaking from the perspective of having raised 4 children, this writer can not believe that any responsible or caring parent would want that on their conscience, regardless of religious beliefs.

A Dereliction of Duty

Regarding this writer’s human rights work at the United Nations in Geneva, Switzerland on African-American gun violence victimization, the Committee on the Elimination of Racial Discrimination (CERD) concluded that such grossly disproportionate violence and loss of life represented a failure of our government in one of its most fundamental obligations – to protect the right to life (ref bolded section paragraph 16).   There should be little doubt that the actions of the North Carolina legislature in enacting HB2, a discriminatory law that increases risk of abuse to an already vulnerable minority, abuse that includes violent assaults as well as harassment and bullying that can result in suicide, represents no less the same failure for North Carolina lawmakers.

HB2 should be repealed to prevent any further damage to economic development and the already vulnerable transgender community.
***********
Addendum: The day prior to the release of this article, with the writing largely completed, the US Department of Justice ruled that North Carolina’s House Bill 2 violates Title IX of the Civil Rights Act as well as Title VII.  House Speaker Tim Moore called the ruling “a huge over-reach (by) the federal government”, additionally adding “It looks an awful lot like politics to me.  I guess President Obama, in his final months in office, has decided to take up this ultra-liberal agenda.”  Despite the continuance of such claims by proponents of HB2, the opposition to this law has little to do with politics or ideological posturing.  If anything, it was the proponents of the legislation that attempted a political ploy to put gubernatorial candidate, Attorney General Roy Cooper, into the uncomfortable position of defending “men in women’s rooms” (ref paragraph 7) – a ploy that backfired and placed the already vulnerable transgender community at increased risk.

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