By now the saga of the so-called Charlotte bathroom ordinance is well-known. In late February the Charlotte City Council passed a so-called anti-discrimination law, scheduled to go into effect on April 1, aimed at protecting what, in the council’s view, are the anti-discrimination 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 is the sex with which they identify psychologically. According to WRAL, [the ordinance] “would allow transgendered people to use the bathroom in which they feel most comfortable.” The N.C. General Assembly held a special session Wednesday to overturn the Charlotte ordinance.
Much criticism of the bill has focused on two issues: the religious freedom of business owners and the privacy rights of people, particularly women, using public bathroom facilities. Most vocal opposition to the ordinance has come from religious organizations and advocacy groups that focus on traditional values. As argued by John Rustin, President of the N.C. 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 businesses decision.
The 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 a privately owned business would have the right to decide whether 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 business owners’ goal is to provide the products and services that most of their customers want in an environment where those customers feel comfortable. 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 President 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 the values that are upheld, then religious freedom will take care of itself.
Dr. Roy Cordato (@RoyCordato) is vice president for research and resident scholar at the John Locke Foundation.