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Report from North Carolina on the HB2 Bathroom Bill

24/05/2016 15:47 | Updated 24 May 2016

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Echoing history, this month the US Attorney General filed a federal civil rights lawsuit against North Carolina alleging that HB2, which requires individuals to use the bathroom that corresponds with their birth certificate, is 'impermissibly discriminatory'. Billions of D.C. distributed dollars are at stake.

Since then, local news reports that pepper spray has been authorised for use in a North Carolina high school system, with the blessing of a board member who suggested it could be used on transgender students using the wrong stall.

But just how did an issue that by the broadest survey affects only 0.3% of the population trigger a constitutional clash at all levels and all branches of government, attracting international boycotts, in the first place?

By most measures arguments from neither side deserve to top the legislative agenda. Law enforcement says safety concerns are a 'non-issue' and LGBT rights register a percentage point on Gallup's 'Most Important Problem' survey. Even Donald Trump and Bernie Sanders agree HB2 should never have been passed!

The answer is that HB2 has been catapulted into the limelight by forces that Americans rarely articulate themselves. Taken together, these 'exceptional' features of American life explain much more than HB2.

These are, simply put: America's unusually open political system, the ongoing trend toward polarization of any issue and, of course, the unique role of moral matters in US political life.

The unusual popularity of religion in the US is well documented. Four in ten Americans attend church every week and contribute $100 Billion to their coffers annually, excluding campaign gifts. Religious arguments have always been used to 'purify' American politics: from the revolution to the Civil War, the Civil Rights movement to the rise of Reagan Republicanism. And let's not forget Prohibition.

Volumes have been written about why this should be so. But in the final analysis it would be quite the coincidence if the only Western society to still be guided by evangelism was initiated by people who intended that to be exactly the case. On the other hand, the secular gospel of personal freedom and commercialism are equally powerful American voices.

Such paradox is the stuff of national character. Look at Britain, a more liberal culture where you can't be head of state unless your Mum or Dad was. Or Germany, a pacifistic nation friendly to immigrants with a history of Nazism. As they say around here, we're all a lil' bit crazy.

But in the American system of government such internal contradictions, in this case modernity and morality, are constantly invited to duke it out, in a variety of venues, for all to see.

Federalism, the libertarian principle that states retain those powers not specifically awarded the national government, explains the timeline of how who uses what toilet became top of the news.

Commentators correctly point out the flurry of proposed gender-related bills, of which HB2 is only one, are a state-level backlash by social conservatives to the Supreme Court decision to guarantee the right to same-sex marriage nationwide less than a year ago. It is a decision a consistent majority of Americans now agrees with.

But when the financial hub of Charlotte, NC added LGBT protections to its city anti-discrimination code at the behest of 'local LGBT leaders' in February, the North Carolina House swung into action the following month with a special one day session to enforce the HB2 rule over self-identification, statewide. Only then did the feds cut in with a lawsuit. Governor Pat McCrory, awakening to economic reality, responded that he would see his own government in court.

The US Constitution provides a range of representation most Europeans can only dream of. But whether by accident or design, competing jurisdictions are a recipe for conflict, especially on moral questions that don't obey reason. Those who feel most strongly about any issue can contribute as much time and money as they want, and aim it at the level where it will have most effect at the time.

So moral issues are a money spinner for the parties and neither side has any incentive to compromise. In fact quite the opposite, as an NC GOP operative once explained to me: As we know an issue will be arbitrated eventually, best to stake out the most extreme position possible, to pull the debate your way.

This is probably why moderate traditionalists have been dismayed that HB2 also removed the right to sue for being sacked while gay (now including Pat McCrory, who signed it into law!). And why middle of the road people who loathe discrimination have reservations over self-identification. If a man declares themselves female does that mean they really are?

Writing in Politico, Michael Lind argues the 2016 presidential race heralds the end of contemporary moral polarization and party order, as economic issues eclipse a divide the parties have capitalized on selfishly. That would be good news.

In the meantime, it's bad news for the thousands of North Carolinians who would have been employed had corporate America remained above the fray rather than being swept up in government's latest bi-polar episode. I'm sure they would have been happy to accommodate any issue, even if the politicians are currently incapable of it.

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