Commentary LGBTQ

You Can’t Go Home Again: North Carolina’s HB 2 Criminalizes Trans Life

Mina Carpenter

On Wednesday, I became illegal in my home state.

On Wednesday, I became illegal in my home state. I can’t go home to see my mother or my sister or my uncle or my friends from high school. I can’t go back to my favorite restaurant. Because the systematic eradication of transgender people from North Carolina is now the law of the land.

That’s not what the headlines said, but it’s the truth. A law that criminalizes trans people using the bathrooms of our actual genders criminalizes trans life.

That might seem like a big leap to you. So let’s break it down.

North Carolina’s HB 2, signed into law last week, overturns local anti-discrimination laws, bans cities or counties from setting a minimum wage for private employers, and dictates that access to restrooms in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate. The law applies to schools and all state- and locally owned public buildings—public universities, rest areas, airports, courts, jails, social services, and the like. The law also defines public accommodations such that private property owners who wish to discriminate against trans people are protected; it just doesn’t force them to do so.

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Using the wrong bathroom as the law demands isn’t a realistic solution for most trans people. Most trans people can’t walk into the bathroom the law says we should use without the risk of someone deciding we’re in the wrong place. A lot of trans people can’t walk into any bathroom without the risk of someone deciding we’re in the wrong place. Complying with the law wouldn’t work out very well, but that’s beside the point. Saying that it’s legal to be trans so long as you use the wrong bathroom is like saying it’s legal to be Christian so long as you don’t set foot inside a church. It makes it illegal to be trans in practice—illegal to live your gender.

If you could make us cis by making it illegal for us to live as who we are, don’t you think it would’ve worked by now? We were illegal when we rioted at Compton’s, we were illegal when we rioted at Stonewall, and we persisted despite being illegal for 100 years before that. A lot of us are still de-facto illegal, and we’re still here. Yes, sometimes trans people have to hide or compromise on who we are in order to survive in a world that wants us dead. Sometimes it means letting the system rob you of your dignity so that it doesn’t rob you of your freedom or your life, just as sometimes it means dying rather than let it rob you of your dignity. That’s the choice that trans people in North Carolina have right now: Dignity or freedom. Choose one—and probably get neither.

So it is absurd to say that what this law does is force trans people to use the restroom corresponding to the gender on our birth certificates. This law gives North Carolinian trans people three choices: risk legal penalties and police harassment for using a gendered bathroom, find a way to do without, or leave the state.

But bathrooms aren’t optional. Having them available is a requirement to access public space and public life. Could you hold down a job if you couldn’t pee at work? Could you go to school if a round trip to the only bathroom you could use took eight minutes, but you only had seven minutes between classes? Could you go on a date if you didn’t know whether you’d be able to pee at the restaurant, at the movie theater, at the bar—at all—until you got home? Could you keep yourself healthy by exercising at the gym without using the locker room or the bathroom? Could you fly home to visit your family if you had to get to the airport, check in, get through securityand board your flight before you had access to the plane’s gender-neutral restroom?

Bathrooms are an essential part of public infrastructure, and if you can’t access them safely and reliably, you can’t leave the house safely or reliably.

It is our duty to fight for our freedom. It is our duty to win.

The reality for transgender people in this situation isn’t that we have to use the wrong bathroom. The reality is that unless we leave and never come back, we either imprison ourselves metaphorically in our homes or risk being imprisoned literally. These are conditions calculated to bring about our destruction as a people. That’s genocide.

North Carolina isn’t alone in what it’s trying to accomplish. Security personnel already harass and arrest trans people for using the bathroom even without any laws to back them up. Because any time we interact with a representative of the state, there’s what the law says they can do, and then there’s what they actually do.

Laws like these justify and expand practices that already exist to eliminate and subjugate transgender people. Airport scanners are designed to deny trans people freedom of movement for the sake of security theater for cis people. A majority of states make trans people’s legal rights and access to accurate documentation dependent on genital surgery—which amounts to coerced sterilization.

Like many other trans people, I’ve been sexually harassed and assaulted in order to confirm a cis person’s suspicion that I’m trans—and I’ve never heard of anyone being punished for it unless the victim turned out to be cis. While this law doesn’t explicitly provide legal cover to expand the practice of transphobic sexual assault and harassment, it’s hard to imagine that that won’t be the effect. Those most vulnerable will be trans women and femmes—whose demonization has been the justification for the law—and people of color whose bodies are already criminalized and subject to additional scrutiny.

Police departments across the country use relentless profiling for sex work to criminalize condom use. In a climate where rampant discrimination can make sex work the best available survival strategy, that criminalization is an incredibly effective strategy for infecting Black and Latina trans women with HIV. Whether it was planned that way or not, the effect is absolutely genocidal. Years of activism culminated in laws banning the practice in New York and California less than two years ago, but it’s still commonplace elsewhere in the country. And then there’s the blunt instrument of murder, which seems to be gaining in popularity as we gain visibility.

We’re not going away. In the words of queer and trans activists of color protesting the bill Thursday night: This is not over. Cis people have been trying to eliminate us for more than 500 years, so for anyone hoping to get rid of us without getting blood on their hands, too bad. But the fact that this fits into a broader context and a longer history doesn’t make it less terrifying or less awful; it makes it worse. It’s another attack on an already threatened community. It’s a huge expansion of criminalization that makes trans people illegal as a matter of law, not just practice.

But personally? I just want to go home.

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