Today, the Fourth Circuit – which covers North Carolina – allowed to let stand its earlier ruling legitimating the Department of Education’s definition of “sex discrimination” to include “gender discrimination.” The case was specifically about a Virginia trans* male high school student who was banished to the women’s room. No doubt there will be an appeal to the Supreme Court, but for now, the law of the land here is that refusing to allow public school students to go to the bathroom that matches their gender identity puts states at risk of losing a lot of federal money.
Last week, there were two more noteworthy developments around North Carolina’s HB2 (the law that forces trans* people to go to the bathroom of their “biological sex” as listed on their birth certificate, bans cities from expanding anti-discrimination law to include protections for the LGBTQ, and which bans municipalities from raising their own minimum wage). First, on Friday, the UNC System filed legal papers indicating that it will not enforce HB2 on system campuses. The move seems to have been orchestrated by new system president Margaret Spellings, and the affidavit includes the statements that “there is nothing in the Act that prevents any transgender person from using the restroom consistent with his or her gender identity,” and that neither the system nor its member institutions has “changed any of its policies or practices regarding transgender students or employees,” since the act lacks any enforcement provision. UNC mainly wants off the defendant list, but Spellings’ leadership here – and I don’t say this sort of thing often – has been pretty good. She hasn’t denounced the law in so many words, but she’s both protecting the system and our trans* students. Second, the bad PR continues: the law made the New Yorker (the op-ed draws the correct connection to racial integration, and how Southern states resisted that).
With all this news, maybe it’s time to point out some of the obvious problems in the arguments of the bill’s defenders, and what their theoretical assumptions seem to be. Collectively, these demonstrate two, intertwined things. On the one hand, the law is mainly expressive: that is, it doesn’t actually do anything, except scream from the rooftops that the state of North Carolina does not like LGBTQ people. And that, more than anything else, I suspect, is why the backlash against it has been so intense. On the other hand, it shows that the North Carolina legislature operates according to a theory of sovereignty that finds its clearest expression in Carl Schmitt, and the law itself is an attempt to relegate trans* people to what Agamben calls homo sacer. Here’s the arguments: