One of the biggest problems with American politics today is that we’ve lost our sense of humility. (If we ever had it in the first place, that is.) Time was, there were only a few places where you could get your news, and if the world they described clashed with your preconceived opinions – well, that was your problem. But now, thanks to the Internet, there are thousands of news outlets, each of them carefully tailored to this viewpoint or that perspective. No matter how crazy or cockamamie you are, rest assured there are folks out there who think just like you, and some news site is dedicated to showing you the world the way you want to see it. “Yesss,” they whisper. “You’re absolutely right. It’s the ressst of the world that’s wrong.”

So naturally humility’s gone out the window. Donald Trump is leading polls, both parties are getting more entrenched, “compromise” is now a dirty word. It’s a real problem.

Especially in times like this, we as individuals have a moral duty to practice humility. We need to be able to laugh at ourselves. We need to be aware of our flaws. We need to admit when we don’t know something. We need to recognize that no ideas are perfect, not even our own. And most importantly, most importantly, we need to be willing to admit when we’re wrong.

Take, for instance, the court battle over House Bill 2.

There are actually several court battles surrounding HB2, but I want to focus on the one from a couple weeks ago – remember, when the Department of Justice sued the state and then Governor McCrory sued the DOJ and the General Assembly sued them too, and then the DOJ sent out a letter to every school district in America and then a dozen other states got in on the suin’ as well? You know. That one.

There’s a whole lotta yelling going on with all those lawsuits, but the legal question is actually pretty simple. The Civil Rights Act of 1964 and the Education Amendments of 1972 both ban discrimination on the basis of “sex.” Does the word “sex” also imply “gender identity”?  If it does, then gender-identity discrimination is also illegal, which means a school can’t keep (for instance) a transgender girl out of the girls’ bathroom. If it doesn’t, then gender-identity discrimination is not illegal, and a school can set whatever policy it wants.

The Justice Department is arguing that “gender identity” is included in the word “sex,” and most LGBT advocates and HB2 opponents agree. North Carolina is arguing that “sex” does not include “gender identity,” and if you’re an HB2 supporter, that’s your argument too.

And everybody’s willing to go to court over this, so apparently we’re all very certain our position is the right one.

But here’s the point I want to make, and it’s the funniest damn thing in the world:

Both sides have already admitted they’re wrong.

Start with HB2’s supporters. Tim Moore and Phil Berger filed a lawsuit against the federal government because (they said) they don’t believe “sex” includes “gender identity.”

But when they actually wrote House Bill 2, they did this:

HB2 biological sex

 

(When you’re reading a bill, anything that’s crossed out is what the bill wants to eliminate from the current law, and whatever’s underlined is what the bill wants to add to the current law. Anything that’s not crossed out or underlined is meant to be left unchanged.)

What you’re looking at there is Part 3.1(a) of HB2, which makes one small change to the state’s existing law against employment discrimination: it changes “sex” to “biological sex.” (In Part 1, the bill defines “biological sex” as “the physical condition of being male or female, which is stated on a person’s birth certificate.”) The purpose here is to preempt any discrimination claims from transgender people: the change makes it clear that gender identity is not protected as a category. It’s “biological” sex, nothing more.

But why was that necessary? Phil Berger and Tim Moore are heading to court right now insisting that the word “sex” doesn’t include “gender identity.” If that’s true, then there was no need to add “biological” to “sex” in HB2 – the word “sex” alone would have been loophole-free. The fact that Berger and Moore made it a point to add “biological” means they believe (or at least they suspect) that “sex” really does cover gender identity too.

In other words, the General Assembly has already conceded that the Justice Department is correct – the proof is in HB2 itself.

Funny!

Right?

It’s almost funny enough to make you forget that LGBT advocates have always assumed the word “sex” doesn’t cover gender identity.

Because that’s true too. The Civil Rights Act has banned discrimination on the basis of “sex” since 1964 – and if Loretta Lynch is right, that means discrimination on the basis of gender identity has technically been illegal for more than 50 years. So there wouldn’t be a need to go back and add “gender identity” as a separate category.

But that’s exactly what the LGBT rights movement has been trying to do for years. Versions of the “Employment Non-Discrimination Act,” or ENDA, have been introduced in Congress over and over again since the 1990s. Initially, ENDA proponents were only trying to add “sexual orientation” as a protected category – but beginning in 2007, they sought to add “gender identity” as well. (Why no “gender identity” before 2007? Not because advocates assumed the Civil Rights Act already covered it, but only because they figured it’d be hard enough to get Congress to sign off on “sexual orientation.”) And it’s not just on the federal level: LGBT rights advocates have spent years urging states to “add the four words” (“sexual orientation” and “gender identity”) to their own anti-discrimination laws as well.

Getting ENDA passed has been a central aim of the LGBT rights movement since the mid-90s. The idea that ENDA might be redundant in a world that already has the Civil Rights Act? Hasn’t really come up all that much. Instead, advocates have argued that “the four words” are necessary, that not adding them leaves LGBT people open to discrimination. That’s an argument that only makes sense if you believe the Civil Rights Act does not protect LGBT people – which is exactly what HB2’s supporters are arguing now.

So that’s where we stand. HB2’s supporters say the word “sex” doesn’t cover gender identity, but they changed state law apparently on the assumption that it does. HB2’s opponents say “sex” does cover gender identity, but they’ve spent the last 20 years pushing for a law that only makes sense if it doesn’t.

So what’s the truth, after all that?

The truth is that the law is simply unclear. Does the word “sex” cover “gender identity”? You can make a strong case that it does, and you can make a strong case that it doesn’t. And let’s be honest: even though we’re all puffing our chests and banging the pulpits over this court case, both sides know full well that the law is unclear. That’s why Berger and Moore changed “sex” to “biological sex” in HB2 – they knew “sex” alone was too vague, so they added the word “biological” for clarity. That’s also why LGBT rights advocates have been pushing legislators to “add the four words” – even if they think the Civil Rights Act actually does cover them, they still want clarity too.

So maybe, at the end of the day, it’s Pat McCrory who’s getting it right. He’s the one, more than anybody else, who’s been urging Congress to take action to clear up the confusion. “The U.S. Congress must intercede,” he said on May 13. “We all must work together to seek answers and common sense clarification.”

Then again, maybe not. In calling for “common sense clarification” from Congress, McCrory is admitting (correctly) that the current law is unclear. If that’s the case, how should the courts proceed?

Traditionally, when the text of a law is unclear and it’s not obvious how it should be interpreted, the courts have always deferred to…yep, the executive branch.

This is a conservative principle, “judicial restraint” – where judges step back and let legislators and executives do their job, rather than imposing their own preferred policy.

But the upshot here is this: if Pat McCrory is right, and the law really is unclear – then the courts should reject his position and side with Loretta Lynch!

So, to sum up: HB2’s supporters say “sex” doesn’t include “gender identity,” but they act as if it does. HB2’s opponents say “sex” does include “gender identity,” but they act as if it doesn’t. Pat McCrory says the law is unclear – but if he’s right, then he should lose in court. We’re about to spend tens of thousands of dollars on this case, and literally everyone is wrong.

A little humility goes a long way.