Catie Byrne
Features Editor

Dr. Mark Rifkin, director of the women’s and gender studies department and professor of English, sat down with The Carolinian to share his thoughts and insights on HB-2. Dr. Rifkin is the author of three books and he has worked at UNCG since 2008.

Q 1: “So, what do you think the legislation of House Bill 2 means for North Carolina, now?”

A: “Well, first I should note that I’m talking as an individual, scholar, educator and citizen of North Carolina, I’m not speaking as representative of the [Women’s and Gender Studies] program. So, what I think it means for North Carolina, is that, minorities throughout the state need to be worried that their access to resources, to accommodations, to jobs, are not protected. Because the law’s not simply targeting transgender people, although it does do that, quite explicitly, but also, it’s de facto targeting other sexual minorities, because they are also not part of the list of the protected groups under the law. Local governments are barred from enacting statutes to protect sexual minorities — you know, LGB people, and also T people — in ways other than the bathroom issue. The law also guts the existing anti-discrimination protections by disallowing people from suing over private employers over discrimination. So, there’s still the federal protections, but basically, so even if there are ostensibly protected groups in the state, that protection is largely meaningless unless you are employed by the state… So I think that the law renders the everyday lives and well being of large segments of the state, insecure and vulnerable. Plus, I also think that the law is a disaster for the reputation of North Carolina, in the country, and internationally. A number of cities, and I believe the state of Connecticut actually, have said they will not pay for travel to North Carolina. There have been reports that people have said that they will not attend schools in North Carolina, people have turned down speaking engagements at universities here, and I do not blame them for doing so. So, I think the law is dangerous for many, many people in North Carolina, and is actively wounding to the state, in terms of its reputation.”

Q 2: “What do you think can be done to remedy the problems caused by the HB2 bill?

A: “It needs to be repealed. That’s how it can be remedied; it simply needs to be repealed. There’s no stop gap fix. There are various questions about how the law violates Title VII, and Title IX, and in terms of both employees, but also students. And, there’s of course there’s the risk of losing, I believe, it’s $4.5 billion in federal funds, because of violating IX in particular, in the UNC system. So, I don’t think there’s a piecemeal way of addressing the law, it simply needs to be overturned or repealed. I mean, as the current Attorney General of the State himself has declared, that he finds that this law is unconstitutional. So, the person charged with upholding the law of North Carolina, most directly of course, Governors, the person whose task it is to defend the laws of North Carolina in court, has said he will not defend this, because he believes it to be unconstitutional. So, I don’t know that there’s any way around the law, within its terms, it’s simply needs to be repealed or overturned.” 

Q 3: “What does this law means for the future of LGBT legislation within North Carolina? Could it get any better or worse?”

A: “Well, the law is disastrous for LGBT people in North Carolina. Could it get worse? Well, it seems to me that the law, in its current form, actually violates existing Federal precedent. In Romer V. Evans, I believe, it was in 1996, the Supreme Court found, that this kind of law, preventing anti-discrimination, is unconstitutional. In that case, it specifically said, that anti-discrimination statutes, having to do with sexuality and gender, could not be passed. This law does not do so, it stops short of doing so. It clearly seems to me, part of the intent. I think that the way that the law is structured, is to get around targeting LGBT people, explicitly for discrimination. The bathroom provisions are discriminatory, but they are not framed in a way that, on the face of it, the intent is to discriminate. That they claim that this is just a common sense measure; it is not, it is discriminatory, but it does not explicitly target, on the face of it, transgender people for different treatment, although that is its substantive effect. And so I do not think that the legislature, would pass laws that, explicitly would discriminate, but what they do, is that they carve out spheres of legitimacy for discriminatory action, without the legislation itself calling for discrimination. There is no moment in the legislation where it says that LGBT folks will be treated differently, instead, it disallows efforts to prevent differential treatment. So, it’s that kind of negative position that does not explicitly appear to target a group for state-sanctioned discrimination, but it does open up spheres of law in which there is no remedy for discrimination; in which, certain acts do not constitute discrimination under the law. So, the state is not saying, ‘You citizens of North Carolina, you residents of North Carolina, can discriminate against this class of people,’ but what it does do, is create these kinds of negative zones in which discriminatory action does not legally count as discriminatory action.”

Q 4: “Will the issue of HB2 go to the Supreme Court?”

“It’s hard to say, as we all know the question of the Supreme Court as we know it is a bit of a question mark, and what that’s going to look like, no one knows. Do I think that the law as it currently stands in North Carolina is a violation of the Equal Protections provision of the 14th Amendment of the Federal Constitution? Yes I do. Do I think that this law is in violation of existing federal law, yes I do. Do I think that this law should be struck down, on constitutional grounds? Yes I do. Do I think that the law was passed so quickly and so secretively that there wasn’t actually consideration as to the kind of constitutional validity of the law. Yes, I do think it was passed in that way, in a hasty, ill-considered fashion. What’s going to happen to it, we’ll see.”

Q 5: “Within activism spheres, can any good be done for the trans community?”

“I do think that, the fact that this bill got passed, and the response to it, I think, brings to light the scope and intensity of transphobia. Hopefully then, folks for whom, the bathroom question is a non-issue — as it should be — people should be able to use the bathroom, that this will move them, move those folks to act, to speak to their representatives. To, you know, make clear of their dissent from this bill, and also I think that the national response provides opportunity for galvanizing support for trans folks. But, it’s also, I think, one thing this bill reveals, is the way that transphobia does not exist separate from other sets of assumptions around proper gender — that also have to do with sexuality, that have to do with race, that have to do with religion, that have to do with ability — that interlocking set of assumptions about what proper personhood looks like.”