North Carolina’s Bathroom Bill Is Not So Much About “Common Sense” As Religious Identity (Hollis Phelps)

Current Events

I live in Chapel Hill, North Carolina, and like many North Carolinians, I’ve been closely following the fallout over House Bill 2, or what has come to be know nationwide as our state’s “bathroom bill.”

Back in late March, the North Carolina legislature passed HB2 in response to a Charlotte ordinance that had extended certain rights to persons who identify as LGBTQ, including the right to use public restrooms based on gender identity.  HB2 does numerous things. It basically strips the ability of workers to file state anti-discrimination claims and bans local minimum wage laws.  But it’s the “bathroom” portion that has received the most attention. HB2 requires that transgender persons—and everyone else, for that matter—use public restrooms on the basis of “biological sex,” as recorded on a birth certificate.

Critics of the law have—rightly, I think—interpreted it as discriminatory, in both intent and result, toward transgender persons, and have called for its repeal. That seems to be the view of the US Justice Department as well, which this week informed North Carolina officials that HB2 violates the federal Civil Rights Act and Title IX of the Education Amendments of 1972.  What’s been interesting for me is how supporters of HB2 have framed their claims. In contrast to opposition over other “culture war”-type issues, supporters of HB2 have, by and large, steered clear of explicit religious arguments.

For instance, the NC Values Coalition, a “pro-family” lobbying organization that seeks to “to preserve and promote faith, family, and freedom in North Carolina and create a favorable political climate for these core values,”  has been an ardent and vocal supporter of HB2. The rhetoric that it has used to voice support for HB2, however, is markedly different from its previous initiatives.

Take the issue of same-sex marriage. The NC Values Coalition was, unsurprisingly, adamantly opposed to same-sex marriage. Its opposition, however, largely took a not-so-subtle theological approach to the issue. Writing in response to the Supreme Court’s decision in Obergefell v. Hodges in 2015 to overturn state bans on same-sex marriage, Tammi Fitzgerald, the Executive Director of the organization, made a religious claim, noting, “Millions of Americans believe that marriage is the sacred union of one man and one woman, and it is an improper abuse of power for the Supreme Court to attempt to re-define an institution that it did not invent.” She went on to note that the decision posed a threat to “the religious liberties upon which our country was founded.”

The organization’s approach to HB2, however, has been different, at least on the surface. The Keep NC Safe initiative, which is affiliated with the NC Values Coalition, has sought to frame the issue in terms of privacy, safety, and security rather than religion. HB2 isn’t about discrimination or, on the flip side, religious rights, but rather, “protecting women’s bathrooms, showers, and locker rooms.” Requiring that individuals use bathrooms and similar facilities based on “biological sex” is, Keep NC Safe claims, “just common sense.” “No Men in Women’s Bathrooms!,” the initiative’s slogan emphasizes.

Such appeals are less theological and more visceral, appealing to “common sense,” combined with fear.  It doesn’t matter if the appeals trade on base stereotypes (the implication is, of course, that transgender persons are sexual predators) and an utter misunderstanding of sexuality and gender identity. Nor does it matter that the appeal to fear is, by all accounts, unfounded.  The appeals are, primarily, affective, and that’s the level at which mobilization in support of HB2 has been, and continues to be, pitched.

It’s tempting to read the shift from the theological to the affective pragmatically, in terms of a carefully-weighed strategy. (Though, if that’s the case, given the legal, political, and economic fallout, it’s not clear how “careful” that strategy has actually been.) The conjuring of fear, on this account, would be a last-ditch, cynical effort to sneak in a by now worn out theological agenda, under the guise of “common sense.”

There’s something to this line of thinking, of course. Theology isn’t altogether absent in the support of HB2. The enshrinement of “biological sex” into law draws on and reinforces traditional theological notions about sex and gender identity, for instance. Nevertheless, reading matters in these terms tends to associate religion primarily with belief: since support of HB2 doesn’t rely on specific appeals to Christian beliefs then religion is, at best, epiphenomenal to the discussion, if not absent entirely.

Religion, however, is just as much about feeling as much as belief, as much about emotion and affect as stated positions. Indeed, I would suggest that, so understood, religion is even more on display in the support for HB2, in that support for it lays bare the base level of much conservative religious identity in the United States, at least as manifest currently.

Although arguments for HB2 appeal to “common sense,” the very fact that opponents do not take the charge “No Men in Women’s Bathrooms!” as “common sense” exposes the limited nature of the claim. What is being appealed to, in other words, is not so much “common sense” as the outlines of a particular religious identity, marked affectively in the way in which its subjects react to what, they assume, is outside that identity’s purview. It’s no accident, in this sense, that the rallies held in support of HB2 have featured line-ups of well-known conservative Christian speakers.  Nevertheless, fear, as expressed among supporters of HB2, isn’t just about particular threats, albeit imagined ones, but about a more general threat to religious identity—a threat that, it’s important to emphasize, is not so much cognized as felt.

All this means, too, that arguing against supporters of HB2—or similar bills, for that matter—may not be the best strategy, at least in the long run. This applies even if such arguments take the form of well-crafted theological appeals. If support for HB2 and the religious identity that goes along with it functions affectively, then that’s the terrain on which a response and opposition should be carved out.

Hollis Phelps is an assistant professor of religion at the University of Mount Olive, in Mount Olive, NC. He is the author of Alain Badiou: Between Theology and Anti-theology (Routledge, 2014). He has also written for The Huffington Post.

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