Metro Weekly

North Carolina’s Constitutional Challenge

Law professors comment on a lawsuit to overturn North Carolina's anti-LGBT law -- it's going to be a tough fight

North Carolina State Capitol in Raleigh
North Carolina State Capitol in Raleigh

When North Carolina passed a law that discriminates against the LGBT community, a legal challenge was all but inevitable. Now, the precedent of that argument is starting to take shape, as various groups suing the state figure out how best to combat legalized bigotry.

“Hostility toward or discomfort with a group of people is not a legitimate basis for government action,” says Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia Law School. In passing the law, North Carolina’s Republican-controlled legislature showed “a stunning disregard of the basic constitutional protections for LGBT people.”

That disregard is the basis of a lawsuit filed last week by the American Civil Liberties Union (ACLU), the ACLU of North Carolina, Lambda Legal and Equality North Carolina. It argues that HB 2 is unconstitutional, violates the Equal Protection and Due Process clauses of the Fourteenth Amendment, discriminates based on sexual orientation and sex, and infringes on the privacy of transgender people. It also contends that provisions governing restroom usage by transgender students in public schools — requiring them to use only bathroom or locker rooms designed for their biological sex at birth — violate Title IX’s prohibitions on discriminating against students on the basis of sex.

“HB 2…not only disproportionately burdens transgender people, but intentionally targets them for differential treatment,” the complaint reads. “Lawmakers made clear that HB 2 was specifically aimed at transgender people…. HB 2 also disproportionately burdens [LGBT] individuals, by stripping them of or barring them from anti-discrimination protections under local law.”

While LGBT advocates experienced a minor victory when North Carolina’s Attorney General said he will not defend the constitutionality of HB 2 in court, the lawsuit still has several hurdles to overcome. Not least the issue of whether the city of Charlotte had the right to pass an LGBT ordinance — something HB 2 controversially repealed.

The law has drawn comparisons to the 1996 Supreme Court case of Romer v. Evans. There, a voter-approved amendment to the Colorado constitution reversed pro-LGBT measures in Denver, Boulder and Aspen, and prohibited any locality from passing a law that granted protected status to LGBT people. But while the situations in Colorado and North Carolina share some similarities, there are also distinct differences between the two situations, legal experts say.

“The North Carolina statute is drafted with a little more subtlety than the news reports have indicated,” says Anthony Winer, a professor of law at Mitchell Hamline School of Law in St. Paul, Minn. “It’s clear that the people who drafted [it] were familiar with…the Colorado situation. They drafted it to try and get around that.”

While HB 2 does have various provisions that restrict the civil rights of LGBT people, it doesn’t explicitly single out LGBT people, as Colorado’s law did when it was passed in 1992.

“[HB 2] doesn’t mention LGBT people by name, but it does say that it is the public policy of the state to protect people against discrimination on the basis of race, religion, color, national origin or biological sex,” Winer says. “It attempts to do, by implicit failure to cover, what the Colorado amendment did by explicit exclusion.”

It’s that difference that places a higher burden on those seeking to overturn HB 2. They cannot cite any particular language in the statute that expresses anti-LGBT sentiment. But Winer notes that the law can still be challenged under the rationale used in Romer, where the intent of the law was clearly to overturn the pro-LGBT ordinance in Charlotte.

Steve Sanders, a professor of law at Indiana University Maurer School of Law, says much of the success of a challenge to HB 2 relies on the underlying assumption that the Charlotte City Council was acting within the scope of its rights when it passed the ordinance. If the city never had the right to pass a nondiscrimination ordinance extending protections to certain classes of people, opponents will simply argue that the state legislature correctly intervened. If, however, Charlotte had the power to pass such an ordinance, but the legislature interfered and overrode the city’s authority to govern itself, it might be easier to argue that the law was compelled by an animus towards LGBT people, and transgender people in particular.

“They’re going to have to overcome a strong presumption that states can control what cities do, but I think the argument has to be made that, but for animus and fear and hate, this law would not have been passed,” Sanders says.

North Carolina’s law also differs in that it is specifically tailored to local ordinances, while the prohibition put in place by Colorado’s Amendment 2 was much broader, prohibiting both the state of Colorado and its localities from providing protections for LGBT people.

“One of the things that really troubled the justices in Romer was the uncertain scope of Amendment 2 in Colorado,” Sanders says. “In other words, there was some concern that the language was so broad that the justices were worried that cities could do things like deny police protection to gay homes or gay businesses, sort of basic services, and gays and lesbians would have no right to complain about that. It was just unclear whether the law went beyond banning nondiscrimination laws and actually authorized cities to essentially treat gays and lesbians differently, even in the provision of basic public services.”

If a challenge to the North Carolina law is to be successful, it will most likely have to be argued on the basis that the legislature never would have passed the law had its members not been motivated by animus toward LGBT people and the near-hysteria whipped up by social conservatives surrounding the use of single-sex restrooms by transgender individuals.

“In other words, the state undeniably has the power to control what local governments do, to put limitations on the powers that local governments exercise, but there’s a strong strain of Equal Protection Clause doctrine that says states can’t do things for the sole purpose of expressing moral disapproval against another group, or harnessing public fear and misunderstanding against a particular group,” says Sanders. “There comes a point at which the motives behind the law, whether the purposes behind it are invidious or not, matters. And I think that argument would have to be made here.”

For Winer, regardless of the outcome of the legal challenge to North Carolina’s law, the debate that it has sparked underscores the glaring lack of federal protections for the LGBT community, which would essentially render state laws like HB 2 toothless.

“What this really indicates to me is the importance of passing a national employment nondiscrimination act at the federal level,” Winer says. “The federal law would then preempt and override the state legislature. So in terms of a political takeaway, the real lesson is we need a federal employment nondiscrimination act.”

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