A Word on Behalf of So-called “Fearful Constituents”

1 June 2016

North Carolina’s recently passed legislation referred to as HB2 has become quite a point of discussion and contention in America as well as elsewhere in the world.  Among other provisions the legislation, passed in March, prohibits people from using public restrooms not corresponding to their biological sex.  In a column headlined “HB2 hits the wall of a basic principle,” Tim White, Fayetteville Observer editorial page editor, refers to those of us who support HB2 as “fearful constituents.”  Talking about Governor Pat McCrory and state legislators who are standing by the legislation, White writes: “If he and legislative leaders decide to continue their defiance, they’ll win more political points from fearful constituents and lose billions of federal dollars in education and athletic funding – on top of the hundreds of millions they’ve already cost our economy.”  My purpose in this column is to respond to Tim White by making the case that our support of HB2 is not about fear but about common sense.

In my estimation, examination of Attorney General Loretta Lynch’s public comments regarding a lawsuit brought by the Justice Department against the State of North Carolina, Governor McCrory, NC Department of Public Safety, and the University of North Carolina provides tremendous support for the “common sense” argument.  Lynch’s comments were made as she announced that Justice was “…seeking a court order declaring North Carolina’s restroom law impermissibly discriminatory and a state-wide ban on its implementation.”  Justice acted in response to Governor McCrory’s lawsuit against the Department accusing the federal government of “baseless and blatant overreach.”  McCrory’s lawsuit was filed because Justice, in a letter, gave North Carolina three working days to certify that HB2 would not be implemented.  In her comments, Lynch said North Carolina requested a two week extension of the three day response window and the request was under “active consideration” when North Carolina filed the lawsuit on the last day of the three-day period.  McCrory said to Chris Wallace in an interview that Justice responded to the extension request by saying it would only be granted if he made a statement agreeing that the measure was discriminatory.  The governor was not about to make such a statement.

Now to examination of Attorney General Lynch’s comments.  Like Tim White, Lynch says that support of HB2 is about fear of people who present no threat.  That is, persons who are biologically male, but identify as female pose no threat to females in a restroom, locker-room or similar facilities.  This statement is put forth time and again.  The fact is this concern was not the motivating factor in passage of HB2.  The concern is that men will present themselves as transgender when they are not and do so in order to access facilities where women are in various stages of undress.     Further, like so many others, Lynch says transgender persons committing criminal acts in female restrooms has not been a problem.  Again, this is not the issue.  As I referenced in an earlier column on this matter, there have been incidents supporting the concern that allowing individuals to use the restroom of their choice makes illegal acts and invasion of privacy much easier to accomplish.   Reports substantiating this concern are easily accessed on the Internet.  One is:  https://www.youtube.com/watch?v=uzwMJAFWLtQ&feature=youtu.be. Common sense says the concern that prompted passage of HB2 is legitimate.

The attorney general describes HB2 as: “State sponsored discrimination against individuals who want to engage in the most private of functions in a place of safety and security.  A right taken for granted by most of us.”  I contend she acknowledges the expectation of privacy associated with use of the facilities addressed by HB2.  So, if the driving issue for the Justice Department is one of safety and privacy for transgender persons, why is it unacceptable that single occupancy restrooms and related facilities be made available to them instead of multi-use facilities of choice?  HB2 allows for men and women to use the same facility one person at a time.  The key consideration in this thought is that the Justice Department and Obama Administration would have to be as concerned about the privacy and safety of the over 99% of Americans who are not transgender as they are about the less than 1% who identify as such.  Seems to me there is an agenda here that disregards over 99% of Americans.  I invite some common sense processing of this paragraph.

Given that I am black and experienced segregation and the Civil Rights era firsthand, I am seriously bothered when Attorney General Lynch and others liken the transgender situation to the “Jim Crow” laws and resulting unfair treatment of Black Americans.  That is routinely done and Lynch did so when she said: “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.”  To understand why I contend there is tremendous error in making this comparison; one must dig into “distinction without a difference.”  Two quotes from wisegeek.com:

Distinction without a difference is a fallacy that often appears in philosophical or political debate. The basic version of the fallacy occurs when a person prefers, or insists on, one term to a synonymous term, even though there is no substantive difference in meaning between the two.

Any term with exact synonyms can be the source of a distinction without a difference fallacy. If a medical professional insists that being called a “physician” is superior to being called a “doctor” because it is closer to the original Greek term. In modern usage, however, physician and doctor are frequently used synonymously and are not used to differentiate two separate types of medical practitioners. Therefore, claiming that being called a “doctor” is insulting and rude, while being called “physician” is correct and polite is a distinction without a difference, since the meaning of the term is not changed by the word chosen.

So, segregation and the resulting unfair actions toward Black Americans were based on skin color not being the same.  This is a distinction; but because men are men and women are women no matter their skin color, there was not a difference between them.  Making the argument that blacks and whites should be treated differently when there was no substantive difference did constitute a “distinction without a difference.”

This “distinction without a difference” argument does not apply in the case of transgender individuals.  There is absolutely a difference between men and women and it is a difference of considerable substance that is not changed by what is present in a person’s mind. Consequently, likening the transgender situation to that of Black Americans is a fallacy that totally disregards common sense.

Finally, for now, where might allowing people to choose their bathroom and related facilities based on gender identity lead us?  Will there come a time when some white individuals identify as black and seek relief under affirmative action policies intended to improve opportunities for historically excluded groups in American society?   If so, what precedent will allowing people to choose their bathroom by gender identity set for addressing that consequence?  This is just one of many possible challenging results.  Common sense demands thoughtful examination of possible consequences.

Mr. White, as to fear, there is something that scares me beyond description.  I recently had a brief conversation with a young lady who talked about how so many changes are taking place in America.  She said, “It seems any action is acceptable and we think we are supposed to just accept it.”  She continued, “I believe the time will come, and it will happen in my lifetime, when incest will be legal in America and we will accept it.”  She was saying Americans, in general, are accepting of common sense defying and even unGodly change.  My fear is that she is right.