Last Wednesday North Carolina passed a bill that would prevent trans people from using the bathroom they belong in. In the process, it gave the LGBTQ movement its next big fight.
Yesterday three individuals and two LGBTQ advocacy groups filed a lawsuit in North Carolina district court challenging the North Carolina law passed last week with widespread implications for LGBTQ rights. H.B. 2 effectively nullified rights for LGBTQ people at a local level and restricted transgender people’s access to restrooms. They’ve got a compelling case, built on the same rights that moved the U.S. Supreme Court to effectively legalize same-sex marriage last year, but by the time their legal battle is waged it’s possible the rule is changed thanks to pressure from other areas.
It’s no surprise that H.B. 2 is already being challenged. Though the North Carolina’s governor, Republican legislative leaders, and some religious leaders have claimed that the public accommodation portion of the ordinance are in the name of public safety, opponents claim to see right through that. By the governor’s account, it’s a safety concern to allow transgender women—who H.B. 2 supporters, at their nicest, call “men”—into women’s bathrooms. Under the new law, North Carolina only allows single-sex locker rooms and bathrooms to be used by those who have the corresponding sex listed on their birth certificate.
But as critics point out, there’s never, ever been a case of a transgender person perpetrating violence in the bathroom of their choice. Conversely, however,much violence is committed against trans people for using the bathroom that affirms their identity, as well just generally living out. Once you look at the bill with fact-checking glasses, it looks much more clearly like the anti-LGBTQ bill opponents believe it to be.
Especially since it doesn’t end there: Though the main headline-grabs came from the bathroom restriction, North Carolina’s legislative actions go further than that. As Robin Shea noted on her blog theEmployment & Labor Insider, it also extends to North Carolina’s Equal Employment Practices Act, N.C. Gen. Stat. Section 143-422.2, which said certain employers couldn’t discriminate on race, sex, etc.:
The statutory amendments signed into law yesterday eliminate the wrongful discharge cause of action based on Section 143-422.2-3. We expect to see a flurry of summary judgment motions and motions to dismiss wrongful discharge claims based on this amendment. From now on, if an employee believes he or she has been discriminated against based on these characteristics, he or she will have to go through the federal process or lose the claim.According to this article from the Raleigh News & Observer, it sounds like some of our state legislators didn’t know what they were doing. Or, are they just saying that now?Also, the “sex discrimination” prohibitions in Section 143-422.2 now apply only to discrimination based on “biological sex,” defined as the sex on the individual’s birth certificate. It appears that the General Assembly is trying to prevent any expansion of “sex discrimination” to include gender identity or transgender status.
Which is a big change from the status quo. True, transgender folk are largely not protected explicitly in law. But lately federal agencies such as the EEOC and the Department of Education have been going after transgender discrimination as “sex discrimination” under things like Title VII and IX. North Carolina no longer offers such refuge.
And it’s not alone. The Human Rights Campaign has tracked more than 175 anti-LGBTQ bills in 32 states so far in 2016. To put that in perspective, that’s already 50 more than the HRC tracked from all of last year. And 44 of this year’s bills have been anti-trans, limiting access to bathrooms, healthcare, marriage, and birth certificate modification. North Carolina’s is one of the boldest, thus far, but it’s far from the only one.
But it’s also a test case for the future of these laws. Though they gain enough supporters to pass in places like North Carolina, recent laws like this have been all but immediately walked back after national scrutiny. Last spring, Indiana and Arkansas each passed a bill to protect “religious liberty,” but were embarrassed into retreating after adverse reaction from around the country rolled in, including the NCAA. Though the Governor of Georgia seemed long-poised to veto a bill that many said would allow LGBTQ discrimination, it certainly helped that heavy-hitting corporations like AMC Networks, Apple, the NFL, and Disney said they would pull their businesses out of the state if the bill was passed.
North Carolina is already seeing some blowback, with mayors of Seattle and San Francisco prohibiting city employees to travel to the state on official business. The NCAA is already considering what it will do with its 2017 and 2018 men’s basketball tournament games scheduled to be in the state, American Airlines—which just opened its second largest hub in the Charlotte airport—are taking a formal stand in a letter cosigned by other business leaders, calling the proposed legislation “bad for business.”
Coming only months after SCOTUS guaranteed the right of same-sex marriage, many believe the influx of laws are backlash to that decision. But in true double-edged sword fashion, the bill also gives a face to the next step in the fight for LGBTQ equality, which supporters worried might lose steam after marriage equality was achieved. Now they have bills and lawmakers making their battle for them, and a clear show of community support—something that might be bad for anti-LGBTQ legislators in the longer-term, particularly in an election year.
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