(Photo: mgifford/Flickr)
The very people who demand laws for the “protection” of women and girls seem to have most regard for “women and girls” in those cases where they need protection from something — from someone — over whom these protectors wish to maintain dominance.
White women, we were told by American conservatives in the 1940s, would be exposed to sexual danger from black men if public spaces, from buses to bathrooms, were racially integrated. Over the last century, American women (and, sometimes, children) have been protected in excess: from sex education and single parenthood, from jobs reserved for men and welfare, from abortion and the possibility of pregnancy.
This call for social protection is one of the most flexible of American policy inventions: “Protecting women and children” can sound good to almost anyone of any political persuasion.
The safety of women and girls is invoked here only symbolically, as Americans have done so many times before to justify laws that discriminate and exclude.
Which is why it’s not a surprise that the state of North Carolina, in its attempt to defend a law controlling transgender people’s access to bathrooms, now says that the law has nothing to do with transgender people. The state says the law is needed to protect the “privacy and safety of North Carolina’s most vulnerable citizens” — women and children using women’s bathrooms.
In a brief filed in court earlier this month, the state of North Carolina lays out its strategy to defend HB2 — actually, two strategies, which, on the surface, appear contradictory. First, they call on expert attempts to establish what many have criticized them for: to make transgender people themselves invalid. Transgender people are seen, in the state’s eyes, as the product of pathology, and one which they say can be eliminated through conformity to the gender one was assigned at birth. Then, they try to prove that the state of North Carolina isn’t concerned with transgender people at all, and that they had no choice but to pass HB2 in order to prevent the sexual abuse of women and children.
Along the way, the two arguments begin to overlap: It’s a confusing, selective brew of science-ish citations, conventional anti-trans talking points, and fear-mongering about sex crimes. It makes for difficult reading, for example, when the state’s novel twist on the idea of “lived experience” is that “a reflexive insistence on ‘transitioning’ ignores the lived experiences of many gender dysphoric persons [who] deeply regret their transition.”
For this questionable claim, the state of North Carolina calls on physician Paul W. Hruz as an expert. Hruz writes that he does not offer hormone therapy to his patients. He states: “Desistance (i.e. reversion to gender identity concordant with sex) provides the greatest lifelong benefit and is the outcome in the majority of patients and should be maintained as a desired goal.” Hruz’s message — contrary to gender-affirming medical practitioners — is the same as HB2’s supporters in government: Transgender people should not be respected as they are.
Hruz’s rationale for including an argument about “desistance” in this HB2 defense becomes even clearer when he later claims: “Unfavorable long-term psychiatric outcomes for transgender adults point to gender resolution following puberty as the best hope for gender dysphoric children and adolescents.” He spins the denial of care into care. This kind of argument is not unique to Hruz. North Carolina uses this pseudo-concern to further cast doubt on transgender people, to imply that their demands for recognition cause harm.
HB2 supporters fear that it is no longer acceptable to discriminate against transgender people.
This is what the law is really about. For all the time spent trying to prove questionable claims about transgender people made by an expert who insists they “desist,” North Carolina also claims HB2 is not about transgender people, but about “protecting women and girls from a variety of sex crimes that would invade their privacy and put their safety at risk.” It’s a strange pivot, but then it’s not: The safety of women and girls is invoked here only symbolically, as Americans have done so many times before to justify laws that discriminate and exclude.
The rhetoric of protection seems especially symbolic, even cynical, when North Carolina clearly does not include transgender women and girls seeking safe access to public accommodations, like bathrooms, in its definition of “protecting women and girls.”
In fact, transgender people who experience violence don’t figure into North Carolina’s argument at all. The state ignores evidence like the recent study by the University of California–Los Angeles School of Law’s Williams Institute, in which 70 percent of the transgender people they interviewed reported “being denied access to restrooms, being harassed while using restrooms and even experiencing some forms of physical assault.” In the state’s focus on symbolic protection, they take pains to avoid the reality that, in the many states where transgender people do have equal access to bathrooms protected under the law, the kinds of sexual violations HB2’s supporters say they fear have not occurred.
Still, to try to make its case despite this, the state of North Carolina relies on two former members of law enforcement. “Changes in access policies made to accommodate a very small minority of society ignore the reality of the sex drive of a very large majority,” submits Kenneth V. Lanning. He has no particular expertise on gender and sexual identity; he’s a former Federal Bureau of Investigation sex crimes investigator. “Allowing a man to use [a] woman’s rest room [sic], locker room, dressing room, shower, or dormitory room simply because he says he feels like a woman would seem to be reckless, to ignore thousands of years of human experience, and to ignore potential criminal activity.”
The kinds of sex crimes Lanning says will occur are so awful, he claims, that they are also more likely to go unnoticed simply because the public regards such behavior as perverse. But that doesn’t mean he won’t repeatedly offer details. “Much of it is too repulsive to openly discuss,” he writes, invoking his past record of creating profiles of sex offenders. The good people of North Carolina, he says, “certainly do not want to hear graphic details of sexually motivated public lewdness, surreptitious filming, or listening to people urinate or defecate.”
Lanning’s name might be familiar if you followed stories of the sex panics of the 1980s, in which countless American children were said to be molested by agents of Satan. They weren’t. Lanning was at the FBI at the time, where he pushed for more training on ritual abuse and investigated numerous claims. By the 1990s he stated publicly that such cases of Satanic abuse didn’t exist. Lanning did what amounted to a cardinal sin at the time: disbelieving the claims of children. But he was correct; the evidence did not support the epidemic pushed by the media and by members of law enforcement.
Transgender people in North Carolina are portrayed before the courts and the public as a nuisance, a harm, and a threat to the state.
On HB2, Lanning appears to make a reversal, drawing more on sex panic than evidence. He claims that, without laws like HB2, “the very real victims of such conduct — women deliberately exposed to the male genitals of an exhibitionist, for example — would be forced to consider whether the exposure was merely the innocent or inadvertent act of a transgendered individual.” As a result, he continues, “a victim may be unwilling to report an exhibitionist appearing to be a male for fear of being accused of bigotry or gender identity discrimination.” This is without basis. It is something Lanning has no proof of ever happening.
But what is perhaps even more telling about this argument is how it reveals why states believe it is necessary to defend anti-trans laws like HB2. For Lanning and the state, the “very real victims” in the above imagined scene do not appear to include transgender people facing discrimination and violence. What people must be protected from isn’t just the threat of violence, but the “fear of being accused of bigotry.”
North Carolina’s other law enforcement expert echoes Lanning’s fears and inversions. When Tim Hutchison, the former sheriff of Knox County, Tennessee, raises the valid point in his statement that women under-report rape due to fear of “being labeled in some way,” he appears to allude to victim-blaming. But then he continues: He believes a victim may not report abuse in such a bathroom scenario because “changing social norms have made people much less certain about gender issues, and more reluctant to report behavior that seems suspicious, like seeing a man in a woman’s facility. While it is good that society is becoming more accepting of different people, the fear of being accused of bigotry creates a public safety risk.”
(Tim Hutchison, also not an expert on gender or sexual identity, was last in the media as a Donald Trump delegate from Tennessee, a state where Hutchison’s certification as a law enforcement officer was once suspended, in part for falsifying public records. He later retired with his certification restored.)
To be very clear about what the state of North Carolina wants to argue, as Hutchison has for them, it’s this: What has created a “public safety risk” for them is “changing social norms” about gender. This is really what has driven them to action. They fear that it is no longer acceptable to discriminate against transgender people.
Whatever seemingly contradictory groups of experts the state of North Carolina has dispatched to deliver its message to the courts, the message itself is simple and dangerous. The state has pitted the case for transgender rights against the imagined safety of women and children, against protection from sexual violence.
Where does the safety and protection of transgender people factor into laws like HB2? Not at all. Transgender people in North Carolina — and in the other states that have picked up on its tactics — are portrayed before the courts and the public as a nuisance, a harm, and a threat to the state. With these laws, transgender people in America are being told they may as well not exist.
