A proposal to regulate who can and can’t use a public restroom in South Carolina could strike down local laws on non-discrimination – and calls into question state law already on the books.
The interplay of state and local laws – on gender, religion and public and private accommodations – has been put into the spotlight after a controversial bill was introduced into the South Carolina Legislature.
State Sen. Lee Bright, R-Spartanburg, introduced legislation this week that would limit access to public restrooms in government buildings and schools based on “biological sex,” and prohibit local governments from passing non-discrimination rules that would allow transgender individuals from using the restroom of their choice.
The bill is modeled in part on a more sweeping piece of legislation passed by the North Carolina Legislature in a special session called to strike down a non-discrimination ordinance in the city of Charlotte.
That ordinance specifically addressed transgender restroom use. South Carolina cities and counties don’t tend to be that specific, but several do have non-discrimination ordinances in place that protect access to “public accommodations” on the basis of “sexual orientation” and “gender identity or expression.”
Advocates for the Charlotte ordinance clearly think that language covers transgender bathroom access; they cited similar language in Columbia, Charleston, Myrtle Beach, Folly Beach and Richland County when arguing for Charlotte to pass its own non-discrimination ordinance.
“Cities all over the country have had laws like this for decades,” said Paige Dula, a transgender activist who was part of the Charlotte Non-Discrimination Ordinance Coalition that pushed its city council to pass an ordinance in February.
Until now, South Carolina’s local laws haven’t produced the same kind of backlash. When asked about the issue on Thursday, South Carolina’s governor said the 1999 Religious Freedom Act protects those who would object to a transgender person using their restroom.
“When we look at our situation, we’re not hearing of anybody’s religious freedoms that are being violated,” Gov. Nikki Haley told a gathering of reporters. “We don’t think we need to do anything further to require people to feel like their religious liberties are weakened at this point.”
The Religious Freedom Act protects someone “whose exercise of religion is substantially burdened by the State,” who can then claim a religious exemption from state or local laws unless the government can show a “compelling state interest” in the law being enforced.
Bright’s fellow senators echoed that thought when reached for comment. Sen. Harvey Peeler, R-Gaffney, said he hadn’t read Bright’s proposal but, “I’ve been told we already have laws on the books addressing this,” and Senate staff were researching whether Bright’s bill might be redundant.
Sen. Wes Hayes, R-Rock Hill, also said he believed the Religious Freedom Act protected business owners against being required to allow transgender people to use the bathroom of their choice, and doubted the bill would see much advancement.
“It would have to compete for time with the budget, which will take up the majority of the session,” Hayes said.
Bright could not be reached for comment on Thursday, and the voicemail box in his Senate office was full.
Others aren’t so sure the Religious Freedom Act would offer a defense to cities’ public accommodations law.
“How does it violate your religious beliefs to have someone else go to the bathroom? That doesn’t make sense to me,” said Harriet Hancock, a Columbia lawyer. Hancock helped draft the city’s employment non-discrimination code for gays and lesbians in 1990, one of the earliest acts of LGBT protection in the state. She remains a gay rights advocate, including on transgender issues.
“Some of these (trans) women are some of the most attractive, voluptuous, sexiest women you’ll ever see. And you want them to use the men’s bathroom?” Hancock said. “Some people are just uneducated about the trauma they have to live with until they can realize their preferred identity.”
It’s unclear how much protection existing non-discrimination ordinances might offer, or whether the Religious Freedom Act offers an exemption to them. Attorneys for the cities of Columbia and Charleston could not be reached for comment by press time.
But Dula believes South Carolina’s existing law may keep Bright’s bill from passing, whereas North Carolina’s attempts to pass a “religious freedom restoration act” last year failed to pass.
“That’s probably why there’s not as much push back,” she said.