Can private businesses, if they choose, continue to allow transgender individuals to use the bathroom, locker room or other facilities of the gender they identify with…? 

Answer: Yes. That is the prerogative of private businesses under this new law…The law neither requires nor prohibits them from doing so.

Myths vs Facts” a press release on HB2 from Governor Pat McCrory

From a free market libertarian perspective, House Bill 2, as it relates to decision making power regarding who can and cannot use bathroom or shower facilities in privately owned businesses, took the only position that is consistent with a free society. It came down firmly in favor of the separation of bathroom and state.

HB2 struck down Charlotte’s anti private property ordinance which in essence seized decision making power from private businesses regarding the use of bathrooms and shower facilities. Charlotte attempted to mandate that businesses allow transgendered individuals, that is people who are biologically one sex but psychologically the opposite sex, to use any bathroom or locker room facility they choose. The issue from a freedom perspective is not the specific mandate but the idea that there should be any mandate at all. The Charlotte regulation would be just as pernicious if it mandated that these private businesses must stop transgendered people from using the bathroom and shower facilities that they feel psychologically most comfortable using.  The NC legislature deserves credit. It righted the Charlotte wrong without shoving the pendulum too far in the opposite direction. It embraced the basic principle that he who owns the bathroom gets to make the rules regarding its use, and that decision is not the business of any politician or government bureaucrat.

In my newsletter from last week, written before the legislature passed HB2, I stated the general principle as follows:

In a free society based on property rights and free markets, as all free societies must be, a privately owned businesses would have the right to decide whether or not it wants separate bathrooms strictly for men and women biologically defined, bathrooms for men and women subjectively or psychologically defined, completely gender neutral bathrooms with no labels on the doors, or no bathrooms at all.

The beauty for Charlotte of the pro property rights approach is that, if the city council in passing their original mandate was actually reflecting the views of citizens and businesses under their jurisdiction, the free market will deliver them the result they were hoping for. Restaurants, health clubs and other businesses will allow transgendered people to use the bathrooms, locker room, and shower facilities of their choice because these are the kind of establishments that their customers, the citizens of Charlotte will want to patronize. Of course, the market test could also give the opposite result, revealing that the citizens of Charlotte prefer that the signs on bathroom doors designating which sex the facility is reserved for maintain their traditional meaning. For the Charlotte city council, this would seem to be a win either way. Freedom of choice will allow them to discover the true sentiments of the the citizens of Charlotte whatever they are. This conclusion presumes, of course, that their goal is to reflect the will of the people and not simply to shove their own values down the throats of Charlotteans. But let’s give them the benefit of the doubt and assume that as true public servants they would never want to do that.