Making discrimination the law

March 31, 2016

Eric Maroney examines the anti-LGBTQ law passed in North Carolina last week--and provides the background for understanding the right wing's bigotry on this issue.

THE BIGOTED law passed by the North Carolina legislature last week and quickly signed into law by Gov. Pat McCrory goes much further in enshrining discrimination in North Carolina law than the media have recognized.

The legislation, commonly referred to as a "bathroom bill," reverses the city of Charlotte's attempts to expand anti-discrimination protections to include sexual orientation and gender identity. The new state law overturns such local ordinances and limits statewide protections to race, religion, color, national origin and biological sex--specifically excluding LGBTQ individuals.

Among other provisions, the law requires state institutions, including schools and universities, to maintain separate locker and bathroom facilities for men and women, and to prevent trans people from choosing a bathroom for the gender with which they self-identify.

McCrory defended the law's reversal of the Charlotte ordinance, claiming that the city government's new "regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room."

North Carolina Gov. Pat McCrory
North Carolina Gov. Pat McCrory

The law--which also bans cities from setting minimum-wage requirements at a level above state law--is being driven by a bigoted attack on trans and gender non-conforming people that carries very real and dangerous implications.

Trans-identified individuals, especially transwomen of color, experience the highest levels of harassment and violence. In 2013, the National Coalition of Anti-Violence programs reported that 72 percent of hate crimes against LGBTQ people were against trans women, 90 percent of whom were transgender women of color. According to the National Transgender Discrimination Survey, 65 percent of trans people experience violence at work, 51 percent experience harassment by police and a horrifying 78 percent experience harassment, including assault, in schools.

Often, violence against trans and gender non-conforming individuals occurs in public facilities, but incidents are underreported, due, in part, to harassment by police, as well as stigma caused by discriminatory legislation.

Laws like the latest one passed in North Carolina create the conditions for attacks to take place, endangering the lives of trans people. And as the North Carolina legislation was becoming law, nine other states were considering bills excluding trans people from protections--including one in Kansas that proposes to pay students $2,500 for informing administrators about any person using a restroom that does not correspond with that person's birth-assigned sex.


THESE EFFORTS to eliminate protections for trans people are a shocking example of how far the right will go to victimize the most vulnerable people in society.

It seems unfathomable that we could live in a moment when Laverne Cox, the transgender actress and spokesperson, can win an Emmy; a moment when many political leaders make at least rhetorical overtures to include trans people; a moment when same-sex marriage has been recognized by law--while at the same time, 23 states have proposed or enacted LGBTQ discriminatory legislation.

This volatile political period leads to polarization, where left-wing ideas and attitudes gain wider support at the same time as the right can continue to campaign to curtail the rights of others.

The broader setting for this polarization is the economic and social crisis brought on by the Great Recession in 2008. While profits for corporations and wealth for a few have been restored in the years since, there has been deep cuts in wages ad benefits and more exploitative working conditions for the many.

In order to get workers to accept this new normal, there has been a doubling down on reactionary ideas. In an article in the International Socialist Review, Tithi Bhattacharya explains that cuts in state-provided services require workers to shoulder more of the burden of reproductive labor.

Capitalism, faced with a crisis, is seeking a resolution in two connected ways: (a) through an attempt to restructure production, as manifest in the drive for austerity and (b) by trying to reorder social reproduction, as evidenced in its efforts to recraft gender identities and recirculate certain ideologies regarding the working-class family.

Bhattacharya states that this "recrafting" of gender required to repackage ideas about women's labor in the home has legitimized the rise in violence against women and opened the door for a backlash against gains made by LGBTQ people, including a return to conservative notions of what constitutes a "woman" or a "man."

Of course, there is an unevenness in the experience of trans and gender non-conforming people. Celebrities Caitlyn Jenner and Laverne Cox give more visibility to the trans experience and are for the most part accepted as successful images of transgender individuals.

Yet many trans people continue to live in poverty and suffer employment discrimination. This often places them in the informal economy, surviving off practices such as sex work, which does not afford even the limited protections of formal economy work.


THE OPPRESSION of lesbian, gay, bisexual and trans and gender non-conforming individuals is very much linked to the oppression of women.

Under capitalism, the nuclear family is central to the "reproduction" of workers--that is, it facilitates workers returning to work day after day. The family not only reproduces the next generation of workers, but it also services the day-to-day needs of workers (feeding, emotional and physical care, maintaining the home) and care for those outside the labor force (children and elderly). As Sharon Smith, author of Women and Socialism, writes:

This setup places nearly the entire financial burden for raising children and maintaining households onto the shoulders of working-class family units--reliant primarily upon one or two parents' wages for survival, rather than expenditure by the government or the capitalist class.

Smith argues that it is necessary for capitalism to prop up the family through sexist stereotypes:

[R]uling-class ideology compels both women and men to adhere to rigidly demarcated sex roles--including the ideal of the nurturing homemaker for women, subordinate to the family's male breadwinner--regardless of how little these ideals actually reflect the real lives of working-class people.

Transgender individuals are a challenge to this ideology. If one can alter one's gender or, in some cases, physical sex, it calls prevailing ideas about gender into question.

At the same time modern capitalism creates the possibilities for gender nonconformity, it also insists on a reproduced or mirror conformity that requires expensive surgeries and hormone therapy and in many cases a life of secrecy. Changing social arrangements, which have allowed for some individuals to live outside traditional notions of the family, coupled with medical and technological advancements, create the conditions for some to live outside their assigned gender.

To get to the roots of the society's treatment of transgender, it's important to look at the material-economic conditions. Employers depend on sex norms to sort and appraise workers. Capital depends on these fixed notions of gender in order to perpetuate a division of labor in the workforce, to continue an unequal wage system (which in actuality reduces living standards for all of the working class) and to reproduce social labor in the home.

Social gender prescriptions are unyielding and strict. We live in a world that prescribes identities so rigid that it's impossible--even for many who don't identify as transgender--to feel at home within them. The desire--in some cases the necessity--to identify outside of one's given birth assignment is very much a reaction to capitalism's insistence on the binary.

The problem isn't with individuals--whose complex and multifaceted dreams, desires and understandings of themselves don't fit neatly into the categories capitalism allows for. The problem is the narrowed categories that capitalism permits.


NORTH CAROLINA'S "bathroom bill" legislation will likely be used by mainstream LGBTQ organizations as a call to get out the vote for the eventual Democratic presidential candidate, Hillary Clinton, who the Human Rights Campaign has already endorsed.

Although Trump may not explicitly target LGBTQ people in his hate speech, the racist, sexist and xenophobic language that dominates his campaign emboldens the far right and legitimizes a broad spectrum of hateful and reactionary ideas. In January, a Trump supporter crashed a Bernie Sanders rally while holding a sign that read "Obama is a Christian like Bruce [Caitlyn] Jenner is a Woman." That exemplified the breeding ground for reactionary ideas that Trump's campaign has become.

But we must resist the push to fold our energies into the Democratic Party and remember that change is made in the movements and struggles of ordinary people, not in the halls of government. It was Democratic President Bill Clinton who gave us the Defense of Marriage Act and "don't ask, don't tell"--two horrific policies that limited the rights of LGBTQ people.

It was Democratic President Barack Obama who, in 2008, affirmed his belief that marriage is between a man and a woman, stating explicitly, "I am not in favor of gay marriage." And it was Democratic presidential hopeful Hillary Clinton who, only weeks ago, eulogized the passing of Nancy Reagan by celebrating her efforts to "begin a national conversation" about the HIV/AIDS epidemic of the 1980s--when in reality the callous silence of the Reagans allowed the disease to ravage the gay community.

Same-sex marriage was won not because there was a Democrat in office, but because LGBTQ people continued their struggle, even though some believed "they had a friend in the White House." In 2009, more than 250,000 people participated in the National Equality March demanding rights and protections for LGBTQ people. Countless localized actions continued in the time between. As Keegan O'Brien wrote,

[Far] from being a gift delivered from on high, gay marriage was opposed by almost the entire Democratic Party establishment until just a few years ago. It is pressure from below that decisively pushed this struggle forward.

The legalization of gay marriage also shows just how flexible and dynamic capitalism can be. As long as profitability isn't threatened, the economic system will allow all sorts of adjustments, including to the gender make-up of the nuclear family.

But that doesn't mean progress was automatic. Every gain has required relentless struggle from below.

Socialists believe that a multiracial, grassroots movement independent of the two-party system is necessary to push forward reforms that are more threatening to the capitalist system. In the wake of the North Carolina law, the hashtag #Illgowithyou, which pledges cisgender support for individual trans people seeking to access the public facilities they are barred from, emerged on social media.

While the solidarity of cisgender people is necessary to the trans struggle, we need to imagine something much bigger than a pledge that offers individual support. Imagine occupations of gendered public facilities; imagine teachers' unions putting forward resolutions in support of trans and gender non-conforming students; imagine mass protests bringing together the demands of the Black Lives Matter Movement, LGBTQ people, women and workers.

In order to win, we must build the kinds of organizations that understand the roots of trans oppression and like the gay liberation movement of the 1960s and '70s are rooted in radical, anti-racist, anti-capitalist politics aimed at achieving full liberation for all.

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