North Carolina’s HB 2 and Privacy

A sign saying "PRIVATE"Most discussions of HB 2 discuss its discriminatory nature and attack it on that basis, it is more fundamentally a violation of the privacy of anyone who goes to North Carolina.

Although North Carolina’s “Public Facilities Privacy and Security Act” (House Bill 2) includes Privacy in the name of the bill, it is actually in opposition to privacy principles. The section of the law that affects transgender citizens defines individual’s biological sex as “the physical condition of being male or female, which is stated on the person’s birth certificate.” This requires any application of the law to refer to any individual’s birth certificate or information derived from it. Potentially, this birth certificate information is required for anyone who uses “single-sex multiple occupancy bathroom and changing facilities” and not just transgender people. This is extremely private information.

For a transgender woman or man, some friends may know the truth of the matter, but often it would have been shared in a manner that proved that it was intended to be confidential and thus private between the confidants. It still should be protected as private because it was not meant to be shared with others. The law does not have the moral authority to interrogate that information. Court decisions not withstanding, information shared in such a manner is private and should have legal recognition.

Information can be shared in confidence with a covenant, pact, or promise that the information will not be shared outside of that confidence. This promise may not expressed verbally, but that is not necessary for the covenant to exist. The situation at the time of the sharing the information can be clearly understood by both parties that the ensuing conversation is confidential.

If John learned that his friend Kevin had been sexually abused as a child, John might share with his friend that he had been sexually abused as a child as well. By saying that he understands what Kevin was struggling with, they begin a conversation where the information is confidential. Although it is not protected by any legal doctrine such as attorney/client privilege, or a patient/therapist relationship, that does not make it any less private. By taking his friend aside and speaking with him out of the company of others in this manner, he has made a covenant that “Kevin, this is for us to share. What you share with me next, I am not going to share with others.” If John later shared with Kevin’s girlfriend details of that abuse, the outrage of Kevin would be a reasonable expectation. If John had shared it even wider than that, the presence of a privacy violation would be clear.

Similarly, if Torie shared with a trusted teacher about her transgender status, she would do it in a manner that any teacher would understand that the information had been shared in confidence. There would be a connection between the two of them that had developed gradually that led them to be able to have such a covenant of confidentiality about this information. The words “don’t tell anyone else” are not required for the mutual understanding to be just as factual.

With respect to HB 2, the state has no right to interfere with that confidence nor claim that Torie’s status is no longer private. Requiring her to reveal what her birth certificate says is an affront to her dignity. It tears at the very fabric of what human relationships are truly woven from.

Original image: private. By Bryan Kennedy [Image license]