When the Supreme Court struck down racial segregation in public schools in 1954, the Virginia legislature responded by requiring the state to close any schools ordered by a federal court to desegregate. When the court applied the same rule to parks and recreational facilities, many local communities, including my home town of Nashville, Tennessee, responded similarly by closing public swimming pools.
The North Carolina legislature has now tried a similar tack to deflect moves toward legal equality for the state’s LGBT citizens. When the city of Charlotte adopted an ordinance prohibiting discrimination in employment or public accommodations on the basis of sexual orientation or gender identity, the state’s lawmakers responded with a law nullifying the ordinance and blocking any other municipalities from following Charlotte’s example.
In effect, North Carolina closed the local political process to advocates for LGBT equality by adopting a policy that discrimination in employment and public accommodations was “a matter of statewide general concern” outside the authority of any local government to regulate. The Republican-controlled legislature met in a specially convened session to consider the bill and approved it in both chambers on a single day [March 23]. The state’s Republican governor, Pat McCrory, signed the bill late the same evening.
Even as the bill was moving along this extremely fast track, opponents were suggesting that it was plainly unconstitutional under a Supreme Court decision in 1996 striking down an anti-gay ballot measure. The voter-approved constitutional amendment at issue in Romer v. Evans would have prevented the state or any local government from enacting a law to prohibit discrimination on the basis of sexual orientation.
In a 6-3 decision authored by Justice Anthony M. Kennedy, the court said that the amendment disqualified an identifiable class of persons from seeking legal protection against arbitrary discrimination. The amendment, Kennedy concluded, was “a denial of equal protection in the most literal sense.”
Unlike the Colorado measure, the North Carolina law, known by its bill number HB2, lacks explicit evidence of singling out LGBT individuals. The law instead declares a state policy of preventing discrimination in employment or public accommodations “because of race, religion, color, national origin, or biological sex” and finds benefits to businesses and organizations from “consistent” statewide laws in the area.
The bill rode to quick passage in part on the strength of the issue of bathroom privacy raised by the growing visibility of transgender individuals. The bill effectively requires most transgender individuals to use single-sex bathrooms for their “biological sex,” as shown on their birth certificate, instead of their gender identity. Legislators sought to obscure their animus somewhat by specifying that local boards of education have authority to provide single-user unisex facilities.
LGBT rights organizations the American Civil Liberties Union, Lambda Legal, and Equality North Carolina filed a federal court suit challenging the constitutionality of the measure less than a week after enactment [March 28]. The lead plaintiff in Carcaňo v. McCrory is a transgender male employee of the University of North Carolina whose therapist recommended he use men’s restrooms but would be required to women’s facilities under the law.
The 45-page complaint notes the history that preceded the state law. The Charlotte city council passed the ordinance prohibiting anti-LGBT discrimination by a 7-4 vote on Feb. 22 after two hearings featuring testimony from LGBT citizens about their experiences with invidious discrimination. The state legislature passed its law nullifying the Charlotte ordinance, according to the complaint, after “openly and virulently attacking transgender people, who were falsely portrayed as dangerous and predatory to others.”
The complaint includes no legal citations, but the Supreme Court precedents were sufficiently clear to the state’s attorney general, Democrat Roy Cooper, that he promptly declined to defend the law in court. McCrory, however, is doubling down in defense of the measure. After the suit was filed, he issued a “fact sheet” filled with misinformation about the law’s effects.
McCrory denied that the law took away any existing legal protections against discrimination. As noted by fact checkers for the Raleigh television station WRAL, the state law appears to override not only the Charlotte ordinance but also narrower measures in Greensboro and Raleigh, the state capital. In his fact sheet, McCrory depicted the law as beneficial to North Carolina’s ability to attract businesses. The fact-checkers noted opposition to the bill from, among other private corporations, American Airlines, which uses the Charlotte airport as a hub.
Back in the 1950s and ’60s, Atlanta sought to distinguish itself from the resistance to desegregation by describing itself as “the city too busy to hate.” Charlotte has the same aspirations that Atlanta had back then to become a truly national city instead of a big regional city. Among the council members voting for the ordinance, Democrat Al Austin harked back to Atlanta’s slogan. “Are we a city that panders to fear and hate to those who wish to perpetuate fear and injustice?” he asked, according to the account in The Charlotte Observer. “I say to you, ‘Not on my watch.’”
Back in the 1960s, North Carolina had a reputation for progressive politics and policies. Today, under a Republican governor and GOP-controlled legislature, the state has turned its back on that tradition and found time to authorize anti-LGBT discrimination in state law. But federal courts may step in at least to correct this misstep.