Spotlight Report

Charlotte bathroom ordinance — The broader principle is property rights

posted on in Property Rights
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By now the saga of the Charlotte bathroom ordinance is well known. In late February, the Charlotte city council passed a so-called antidiscrimination law, scheduled to go into effect on April 1, aimed at protecting what, in their view, are the rights of those in the gay, lesbian, and transgender community. This law included a provision stating that bathrooms in privately owned business establishments must allow people who are biologically male or female to use the bathroom facilities of the opposite sex if they claim that that is the sex that they identify with psychologically. According to WRAL online, [the ordinance] “would allow transgendered people to use the bathroom in which they feel most comfortable.” As this article is being written, the North Carolina General Assembly is about to go into special session to possibly overturn the Charlotte ordinance.

Much of the criticism of the bill has been centered around two issues: the religious freedom of business owners and the privacy rights of people, particularly women, using public bathroom facilities. Most of the most vocal opposition to the ordinance has come from religious organizations and advocacy groups that are focused on traditional values. As argued by John Rustin, President of the Family Policy Council: 

Similar ordinances have been used to force small business owners like florists, bakers, photographers and bed-and-breakfast owners and others either to conform to a government-dictated viewpoint in violation of those sincerely held religious beliefs or to face legal charges, fines and other penalties that have ultimately caused some to go out of business,

While religious liberty is an important concern, this in fact touches upon a broader and more inclusive issue that, unlike for example the question of whether gay couples should be allowed to obtain marriage licenses, should unite both values conservatives and free market libertarians. Thinking beyond the direct assault on the religious rights of business owners, this ordinance is more broadly an assault on the rights of private property owners and economic freedom, regardless of one’s religious beliefs.

What is overlooked is that the the primary targets of this ordinance are privately owned businesses that offer bathrooms or other facilities — possibly showers in the case of fitness centers — for their customers’ convenience. The decision of how to structure access to these bathrooms may, for some, be based on their religious beliefs.  For many others it is a secular business decision. Their goal is customer satisfaction driven by the desire to make a profit and earn a living.  The property that they use is privately owned, the investments that they make come from private funds, and those who reap the rewards or suffer the losses are private entrepreneurs. The bathrooms in their establishments are part of the product that they provide.

In a free society based on property rights and free markets, as all free societies must be, a privately owned business 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.

Their goal is to provide the products and services that most of their customers want in an environment that those customers feel comfortable in. This environment may indeed be different for different establishments depending on the desires and cultural makeup of their clients.  This ordinance essentially tells businesses that they are not allowed to adjust their decisions regarding their bathroom facilities in order to accommodate customer preferences. In this sense the ordinance is a gross violation of property rights and economic freedom.

Religious freedom in large part, and particularly in a case like this, is the right to use your own property in a way that comports with your religious beliefs. This applies equally not only to the Charlotte bathroom ordinance but also to the Little Sisters of the Poor and Obama’s contraceptive mandate, and most of the other religious freedom cases that are of concern to traditional values advocates. If property rights and economic freedom are upheld, then religious freedom will take care of itself.

Roy Cordato is Senior Economist and Resident Scholar at the John Locke Foundation. From January 2001 to March 2017, he held the position of Vice President for Research at the Locke Foundation. He is also an adjunct faculty member in… ...

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