As both federal and state officials grapple with the enactment of North Carolina’s new law targeting LGBT citizens, one thing has become crystal clear: The law has induced a state of legal pandemonium.
Though GOP Gov. Pat McCrory immediately began assuring his constituents that the "Public Facilities Privacy & Security Act" wouldn't threaten any federal funding for public schools under Title IX, the U.S. Department of Education is now weighing that very prospect. In fact, it is one of at least five federal agencies completing reviews that could have what the Washington Post called "major implications" for the state's finances.
North Carolina's law also prohibited transgender individuals from using government restrooms that align with their gender identity. But don't take that to the bank either. The U.S. Equal Employment Opportunity Commission (EEOC) said Wednesday it has the jurisdiction to investigate discrimination claims from transgender individuals.
That sort of restriction in workplaces is prohibited by federal law, said Chai Feldblum, one of five members of the Equal Employment Opportunity Commission (EEOC).
The agency held last year that banning a transgender employee from restrooms matching their gender in workplaces with 15 or more workers violates Title VII of the Civil Rights Act of 1964. Feldblum and another EEOC official told BuzzFeed News that federal law supersedes local and state laws.
And even HB2 compliance efforts by entities like the University of North Carolina have revealed the law’s many flaws. In a memo distributed Tuesday, UNC President Margaret Spellings went to great lengths to explain the university's obligations vis-a-vis the law. Then came the matter of enforcement:
4. Does the Act address enforcement of the bathroom and changing facility provisions? Answer: The Act does not contain provisions concerning enforcement of the bathroom and changing facility requirements.
In essence, don’t worry, everyone's just supposed to "do the right thing."
In fact, implementation of the new policy is a conundrum lawmakers clearly didn't give one millisecond of consideration to as they rammed the measure through the legislature last week at warp speed. One Mother Jones reporter took it upon herself to make a few calls on the matter and here's a taste of what local law enforcement officials had to say.
"That's a very interesting question. We don't have police officers sitting at public bathrooms all day long," a spokesman at the Raleigh Police Department told me with a laugh. Over in Greensboro, the state's third-most-populous city, I received a similar answer. "We would respond if we received a complaint. It's not like we would be standing guard at bathrooms," said Susan Danielsen, a spokeswoman for the local police department, also suppressing a laugh.
One of the bill's cosponsors, GOP Rep. Dan Bishop, even admitted that they intentionally never considered how to implement the policy.
"There are no enforcement provisions or penalties in HB2. Its purpose is to restore common sense bathroom and shower management policy in public buildings, not to pick out people to punish," he wrote in a statement to WBTV.
That's nothing but a recipe for vigilanteism, since police departments obviously won't be wasting their precious resources playing “Crotch Cops,” as one Daily Kos reader put it.
But trust me, these initial points of confusion are just the tip of the iceberg. If it wasn't immediately obvious last week, it is now: North Carolina Republicans have delivered a master class in how to enact a law that's so ill-conceived, it produces a completely unpredictable legal landscape. It’s exactly the type of environment businesses thrive in.