For Donica Hudson, a trip to the grocery store in Charlotte, N.C., one day in early March was a trip into a future she’d hoped never to see.
Her 14-year-old daughter and 6-year-old son had gone to the ladies’ room, the boy being too young to use a men’s room alone. Emerging from a stall, they found a grown man standing there, washing his hands.
“She pulled her brother back into the stall with her until he’d left, then ran outside to me, and said, ‘Mom, I’m scared,’ and told me what happened,” Hudson says. “I knew that I needed to do something.”
By “do something,” Hudson wasn’t talking about dealing with that one man. She was talking about responding to what the Charlotte City Council had done the previous week. On Feb. 22, that body passed a sexual orientation and gender-identity (SOGI) measure—which meant, among other things, that sex-specific public facilities like restrooms and locker rooms were open to anyone who claimed to identify as a member of that gender.
“I knew this wasn’t just an isolated bathroom incident,” Hudson says. “It was going to permeate all facets of our culture. As a parent, I can’t just stand by and let this happen.”
Hudson—who hosts a local Christian TV show, Charlotte Alive—had been doing something. She’d been fighting that ordinance and networking with the many other citizens who shared her concerns.
Now, however, she stepped up her efforts. She spoke at a rally at the state Capitol in Raleigh and testified before North Carolina state legislators, urging them to overturn the ordinance—which they did in late March.
And when the Obama administration filed a lawsuit in May arguing that every public-education institution in North Carolina must adopt SOGI policies or lose federal funding, Hudson and others—grouped together as North Carolinians for Privacy and represented by the Alliance Defending Freedom (ADF)—launched a legal challenge before the U.S. Supreme Court.
But the resistance movement isn’t confined to North Carolina. On the contrary, it’s going strong nationwide.
That’s in large part because the Obama administration hasn’t confined its position to North Carolina: Within days of its lawsuit against the Tar Heel State, the departments of Education and Justice sent a letter to every public-education institution in the country, with the same directive (adopt SOGI policies) and the same threat—lose federal funds if you don’t.
In response, some 23 other states at press time had launched their own lawsuits challenging the Obama mandate. Meanwhile, local school districts and parents’ groups in Ohio, Virginia and Illinois are waging ADF-aided court battles against Washington’s SOGI decrees.
“We’re seeing widespread opposition to the Obama administration’s overreach,” ADF Legal Counsel Matt Sharp tells Citizen. “People have been awakened to how radical it is. It’s threatening to strip away billions of dollars if we don’t strip away our students’ right to privacy.
“There may be more states and school districts joining this effort. I don’t think we’re done yet.”
Holding the Line
When Charlotte passed its SOGI measure this year, it didn’t come as a surprise to Hudson. She’d been present a year earlier when the City Council barely defeated a similar measure, 6-5.
“This isn’t something that just quickly happened,” Hudson says. “For those of us who’ve been monitoring the safety of our children, we’ve seen it coming a ways off.”
Not that opponents of the proposed policy failed to make their voices heard. On the contrary, hundreds of them rallied outside City Hall the day of the vote, while thousands of them had expressed their views in previous weeks. But two new councilmembers had been elected since the previous vote, and this time, SOGI went through, 7-4. It was set to take effect in a little over a month—on April Fools’ Day.
Unless state lawmakers stepped in first.
And so they did. Senate President Pro Tem Phil Berger and House Speaker Tim Moore called the General Assembly into a March 23 special session, beating the April 1 deadline. They took up HB 2, a bill which said, in a nutshell, that multiple-occupancy public restrooms and changing rooms are set aside for people based on the sex on their birth certificates. (Private businesses can set their own policies.) It also created statewide standards for non-discrimination law, pre-empting local ordinances like Charlotte’s.
“That means you don’t have a case where a business goes to one part of the state and is subject to certain rules and regulations, and then is subject to a different set in another part of the state,” Sharp explains. “It means that you can’t have protections for privacy in, say, Raleigh, but not in Charlotte. People should be protected no matter where they are in the state.”
HB 2 passed both chambers by hefty margins that day, and was signed into law by Gov. Pat McCrory that evening. What happened next was predictable.
“Within minutes, the firestorm started,” says John Rustin, president of the North Carolina Family Policy Council (NCFPC), Focus on the Family’s public-policy partner in the state. “The media was just whipping the opposition into a frenzy. I’ve been in public-policy lobbying work in this state for almost 25 years and have never seen anything like it.”
The American Civil Liberties Union and the gay-activist group Human Rights Campaign, as well as some business interests, pushed hard to repeal HB 2. Various groups threatened to pull out of the state—including the NBA, which had slated its 2017 All-Star Game for Charlotte. Entertainers like Bruce Springsteen drew headlines when they canceled scheduled appearances in protest.
But unlike some other states that have faced a fierce backlash over laws that angered the LGBT lobby, North Carolina has held the line.
“The legislative leaders were invested in the bill,” Rustin says: “They felt it was common sense and important to defend.”
And they knew they had strong backing from the public. “We’d gotten to work quickly after HB 2 passed, letting our (thousands of) constituents know they should contact the governor and legislators,” Rustin says. “That helped bolster the lawmakers.”
As did the fact that many other states were rallying to North Carolina’s side—because those states, too, were in the federal government’s crosshairs.
‘We’ve Had Enough’
On May 9, the Obama administration filed its lawsuit against North Carolina, contending that HB 2 violated Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972—specifically, the provisions banning sex discrimination.
The claim is bogus, Sharp says, noting that “sex” clearly meant what it had always been understood to mean—biological sex.
“This law (Title IX) has been on the books for 40 years, and this issue actually came up while it was being debated on the Senate floor,” he says. “(Sen. Peter Dominick, R-Colo.) said, ‘Now that you’ve got equal access to all these opportunities, does that mean a man can go into a woman’s dormitory or locker room just by claiming he wants equal access?’ And the sponsor (Sen. Birch Bayh, D-Ind.) said, ‘That’s ridiculous: Whenever there are privacy or safety concerns, schools can maintain separate facilities.’
“And to ensure there was no confusion, they wrote it into the language of Title IX: They authorized schools to maintain separate facilities on the basis of sex.”
Nevertheless, Obama’s departments of Justice and Education reiterated the “sex discrimination” claim in their May 12 letter to all public schools—from grade school to college—issuing SOGI-like guidelines. While the letter lacked the force of law, it was clearly a shot across the bow to any states seeking to defy their wishes.
“This is an administration that cares nothing for the plain language of the law,” Sharp says. “They’ve got an agenda and they are forcing it on schools across the country. They’re saying, ‘If you don’t agree, we’re going to strip away all of your federal funding.’ ”
The backlash to the administration’s letter has been widespread and often blunt. In Kentucky, Gov. Matt Bevin said that schools “should not feel compelled to bow to such intimidation.” In Mississippi, Gov. Phil Bryant denounced “the president’s social experiment” and insisted that these decisions are better left to the states and not “made at the point of a federal bayonet.”
By late May, Texas Attorney General Ken Paxton had filed a suit in opposition to the letter’s stance. It was then joined by 10 other states—Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin—with two others, Kentucky and Mississippi signing on in July.
In Texas, as it happens, Houston voters last November overturned a SOGI-oriented bathroom ordinance by a hefty 61-39 percent. So the head of the family-policy council partnered with Focus on the Family there isn’t surprised his state took the lead.
“I think that let elected officials know that the people in both parties don’t want the government to punish people for making common-sense decisions when it comes to privacy and safety,” says Jonathan Saenz, president of Texas Values, which helped to overturn the ordinance(detailed in the November 2015 issue of Citizen). And when we’re talking about schools—our children’s privacy and safety—the feeling is even stronger.”
Moreover, Texas in recent years hasn’t been shy about suing the Obama administration over a range of issues—a fighting spirit Saenz believes is contagious.
“When the time was right for the attorney general’s office to respond (to the transgender policy), they didn’t hesitate,” Saenz says. “They took swift and decisive action. That type of leadership, I think, helped other states to say, ‘We’ve had enough as well; we’re banding together.’ ”
Telling Their Stories
As it turned out, the 13 states participating in the Texas-filed lawsuit were just the beginning. On July 8, Nebraska filed its own challenge to the Obama policy, joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. With those 10 and North Carolina, 24 states—so far—are fighting the federal government in court over this issue.
There’s plenty of resistance to the feds at the local level, too. ADF is involved in two separate cases where school districts protected student privacy and safety in restrooms and locker rooms: The group is representing the Highland (Ohio) Local School District and a group of parents who support the Gloucester County (Va.) School Board.
ADF also is representing families in Palatine, Ill.—51 families comprising 136 parents and children—against Township High School District 211 as well as the federal government.
“The stories these students (in Palatine) tell are heartbreaking,” Sharp says. “There’s one girl who’s being forced to share a locker room with a boy, so she doesn’t change for gym any more. In the morning, she puts her street clothes on top of her gym clothes, removes her street clothes for class, then puts her street clothes back on over her sweaty gym clothes for the rest of the school day because of her fear.
“We’re hearing other stories like this across the country. These policies are having a real impact on students, who are standing up and saying, ‘This is ridiculous. We’ve got a right to privacy and we want to make sure it isn’t trampled on by our schools or by the Department of Education.’ ”
Indeed, even an ACLU leader has one of those stories to tell—and, as a result, she’s now an ex-ACLU leader.
In May, Maya Dillard Smith was serving as the interim director of the group’s Georgia chapter when three transgender men—who were over six feet tall with deep voices—entered the public women’s room her two young daughters were using.
“My children were visibly frightened, concerned about their safety and left asking lots of questions for which I, like many parents, was ill-prepared to answer,” Smith wrote in a statement first obtained by Atlanta Progressive News. After she probed the ACLU’s position further, “I found myself principally and philosophically unaligned with the organization.”
And now, professionally unaligned as well, though it’s unclear whether she stepped down or was pushed out after she started asking questions.
Hudson can relate. And she sees more trouble coming—especially if all the Obama administration’s guidelines ultimately are implemented.
“One of those guidelines is that students are free to choose which biological sex they want to sleep with on overnight school field trips. That particularly hit home with me, because my daughter just went on her eighth-grade field trip to Washington, D.C., where they were assigned bed spaces—two per bed.
“That policy would jeopardize the safety, the dignity, the privacy of my children. And the government has absolutely no right to do that.”
FOR MORE INFORMATION: To learn more, read Focus on the Family’s “Public Restrooms—Your Privacy and Safety” series at http://bit.ly/2a2KHBu.
Originally published in the December 2016 issue of Citizen magazine.