North Carolina's HB2 challenge could play out in two courts

Family protest against HB2 in front of Governor's Mansion

Protesters sing "Let Us Pee" during a protest against HB2 at the Governor's Mansion in Raleigh, NC Saturday, April 2, 2016.
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Protesters sing "Let Us Pee" during a protest against HB2 at the Governor's Mansion in Raleigh, NC Saturday, April 2, 2016.

Within days of the passage of North Carolina’s HB2 law, it met a Constitutional challenge, and which side will prevail has been the subject of much legal analysis in the week that has followed.

What ultimately happens in court, some legal analysts say, might be irrelevant.

With well-organized campaigns by gay rights advocates, who quickly rallied business leaders in opposition of the N.C. law, it’s often the court of public opinion that prevails in these cases, analysts say. They point to what happened in Georgia, Indiana and South Dakota as evidence.

In North Carolina, legal analysts say, it might not be the law but the lawmakers who’ve given the most heft to the legal challenge filed on March 28 by two transgender residents and a lesbian law professor with the ACLU of North Carolina, Lambda Legal and Equality NC by their side.

“The Republicans have done them a favor,” said William Eskridge Jr., a Yale law school professor who teaches about gender, sexuality and the law. “It’s like some Republicans were on salary for the gay rights groups and ACLU.”

In their lawsuit against Gov. Pat McCrory, NC Attorney General Roy Cooper, the UNC system board of governors and its chairman, the challengers offer statements in which they argue that lawmakers went beyond their claims of adopting a law geared toward bathroom safety that instead shows prejudices against a disliked group.

The plaintiff’s case is built on contentions that HB2 violates Title IX, a federal gender equity law that covers discrimination, and the 14th amendment’s guarantees of equal protection.

Three LGBT leaders met with North Carolina Gov. Pat McCrory on March 31, 2016, calling for the repeal of House Bill 2. Chris Sgro of Equality NC, Chad Griffin of Human Rights Campaign and Candis Cox, a transgender woman, also encouraged McCrory to

Advocates of the law have billed it as a public safety measure that creates a unified statewide anti-discrimination law.

House Speaker Tim Moore and Senate leader Phil Berger, both Republicans, said last week in a statement that they were confident a court will find the General Assembly acted properly while reining in local government powers.

The lawsuit takes “attempts to argue with a straight face that there is a previously undiscovered ‘right’ in the U.S. Constitution for men to use women’s bathrooms and locker rooms,” their release stated.

But the challengers and legal analysts say the law goes for beyond that. Not only did lawmakers insert a provison that many contend cuts off the ability of North Carolinians to file discrimination claims in state court, but it also nullifies local anti-discrimination ordinances that go beyond state law, and omits mention of gay or transgender people as protected classes.

“Comments made by lawmakers both during the debate, in the press, and through their social media used vitriolic language to make clear their aim at undoing Charlotte’s protections for LGBT people,” the lawsuit contends.

Among the statements included were:

▪  McCrory characterized Charlotte’s ordinance as “changing basic long-established values and norms” surrounding “public restrooms.” The governor also, the lawsuit contends, “ominously” warned of “possible danger from deviant actions by individuals taking improper advantage of a bad policy.”

▪  Berger’s descriptions of the legislature’s work included: “Senate unanimously votes to stop radical ordinance allowing men into public bathrooms with women and young girls.”

“Lawmakers were forced to come back to session to address the serious safety concerns created by the dangerous ordinance – which violated existing state criminal trespass law, indecent exposure law and building codes and created a loophole that any man with nefarious motives could use to prey on women and young children . . .,” Berger also said.

“How many fathers are now going to be forced to go to the ladies’ room to make sure their little girls aren’t molested?”

▪  “The Charlotte City Council should have never passed this unlawful and reckless bathroom and locker room ordinance,” state Sen.Buck Newton, a Republican running for state attorney general, said. “Politics have reached a new extreme when a municipality’s top priority is allowing men into women’s bathrooms and locker rooms. But tens of thousands of our constituents from across the state have called on us to stand up to the political correctness mob, fight for common sense and put a stop to this nonsense once and for all.”

▪  “This liberal group is trying to redefine everything about our society. Gender and marriage — just the whole liberal agenda,” state Sen. David Curtis said.

▪  “You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are in there,” state Sen. David Brock said.

More than a quarter million LGBT adults live in North Carolina, according to statistics cited in the lawsuit.

Though no one knows exact numbers, the suit estimates that North Carolina has 37,800 transgender residents — including 15,600 who are teenagers — who are disproportionately the targets of hate crimes.

The HB2 challengers argue that legislators’s words, depicting transgender residents as “molesters” and “perverts” bolster their claims that North Carolina’s HB2 was adopted with “animosity” toward a class of citizens and serves no public purpose.

Their legal arguments build upon a U.S. Supreme Court ruling from 20 years ago centered on a Colorado law enacted to block local ordinances protecting LGBT residents.

In that case, Romer v. Evans, Justice Anthony Kennedy held that Colorado had to have more than just “animus” to justify a law there that precluded LGBT residents from seeking protection from discrimination.

Writing the opinion for the 6-3 majority, Kennedy said of the 1992 Colorado law “…laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” The opinion from 20 years ago further states: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

Though the North Carolina law, on its face, does not specifically address LGBT status, Maxine Eichner, a UNC-Chapel Hill law professor who specializes in sexual orientation and the law, as well as employment law, said it is likely the case or others like it with similar questions will eventually land in the U.S. Supreme Court.

But with only eight justices, after the death of Antonin Scalia, and the possibility of a four-to-four ruling, it could be the lower courts that decide the issue.

In January, the U.S. Fourth Circuit Court of Appeals heard arguments in a Virginia case in which a transgender student argued that a decision by the Gloucester County school board to bar him from using the boy’s bathroom is a Title IX violation. The ruling in that case, though somewhat dissimilar to the HB2 challenge, could have an impact on North Carolina, which also is in the Fourth Circuit.

“It’s a much narrower case, but it raises one of the issues raised in the North Carolina case,” Eichner said.

Gay rights advocates say gender identity has become the latest flashpoint in a struggle for equality.

The law surrounding transgender issues, legal scholars say, is quickly evolving, but not as quickly as changing societal opinions about LGBT issues.

Vermont was the first state to recognize civil unions in 2000. In 2004, Massachusetts became the first state to legalize gay marriage, and last year, the U.S. Supreme Court legalized gay marriage nationwide.

As gay rights advocacy groups fought for same-sex marriage and the end of the U.S. military’s “don’t ask, don’t tell” policy, they developed a network that could be quick to react to actions they perceived as discriminatory.

Many of those groups expected a backlash against the U.S. Supreme Court ruling last year, and have been compiling a watch list for state laws and local ordinances they say are designed to turn back the progress they’ve made.

The Human Rights Campaign, an LGBT civil-rights advocacy organization, reported on its site that it tracked 125 bills last year that the organization considered to be discriminatory, with 21 targeting transgender people.

The bills, in state houses and local governments, ranged from trying to limit transgender people’s access to medically necessary gender-affirming care, to attempting to undo existing non-discrimination provisions related to transgender people, to placing a serious burden on transgender people’s fundamental constitutional right to marry the person they love.

Seventeen of those bills, the organization said, tried to deny transgender people access to sex-segregated spaces consistent with their gender identity. None of those 21 bills passed, the organization stated, and only a few survived to be rolled over into the 2016 legislative session.

“When Charlotte passed their anti-discrimination bill, they went forward in progress and understanding that there were protections that were needed for a particular group of people, not special protections but bringing Charlotte into the 21st century, bringing Charlotte into a 21st century of progress on social and cultural areas,” said Simone Bell, the Southern regional director for Lambda Legal, a legal organization focused on LGBT rights.

Bell served six years in the legislature of Georgia, a state where the governor this past week vetoed a so-called “religious freedom bill.”

The Georgia bill was intended to offer protections to faith-based groups if they, absent certain conditions, refused to provide “social, educational or charitable services that violate” their religious beliefs. The measure also would have allowed such groups, without legal repercussions, to avoid hiring anyone whose religious beliefs conflicted with those of the organizations.

In vetoing the bill, many say Gov. Nathan Deal might have circumvented the kind of economic backlash that Indiana faced after the governor there signed a similar “religious freedom” measure. Troubled by threatened boycotts by businesses, sports organizations and more, Indiana rewrote its law.

McCrory, who has faced a similar backlash, has described the reaction as a “a coordinated national effort to mislead the public.”

By Friday, the Human Rights Campaign had rallied 120 companies to sign a letter to McCrory seeking repeal of the law.

The same day the N.C. Sheriff’s Association announced it had encouraged the legislature to overturn local ordinances that allowed transgender people to use the bathroom of the gender with which they identify out “concerns for public safety.”

That news came with announcements from Bill Maris of Google Ventures, who said he would not invest in any start-up companies in North Carolina until the law is repealed.

Film, TV and Broadway production companies also have threatened boycotts and job loss if the law is not repealed.

“When you put forth legislation, if it’s good legislation that’s really gong to help someone it needs to be the answer to a problem,” Bell of Lamda Legal said earlier in the week. “This is not about a bathroom...This is about being afraid about where this world has gone and where we will continue to go.”

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