North Carolina is truly a state of Tar Heels — they are stuck in the past. I’m sure I wasn’t the only person who couldn’t help but think of the LGBTQ individuals in the state of North Carolina as the NCAA Championship game was on, reflecting on how the University of North Carolina men’s basketball team’s success this season was overshadowed by the reckless actions of their governor, Pat McCrory, and state lawmakers in passing HB 2, the Public Facilities Privacy & Security Act.
We have all been watching and reading about the North Carolina law since March 23 when the governor signed it into law. But what is? What does it do and what will the impact be if it is not repealed?
The outrageous new law is described as the most extreme anti-LGBT measure in the country; it disabled cities from creating laws protecting LGBT people. It eliminated all existing municipal nondiscrimination protections for LGBT people, and forces transgender students in public schools and universities, as well as transgender people in publicly owned buildings, to use restrooms and other facilities inconsistent with their gender identity. And even more egregious, it bars municipalities from passing local transgender-friendly bathroom ordinances, like the one Charlotte had when this law was passed.
The language in HB 2 requires transgender people (and everyone else) to use public restrooms according to the biological sex on their birth certificate. But it doesn’t stop there. With the attention surrounding this law being focused on the LGBT component, very few people are aware it impacts many more people than just those in our community; it affects all workers in North Carolina. Opponents have called the new law a “hostile takeover of human rights.”
Tucked inside is language that strips ALL North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985. Allan Freyer, head of the Workers’ Rights Project at the North Carolina Justice Center in Raleigh, states that, previously, if you were fired because of your race, gender or your religion you could sue, but now, no one in North Carolina has that basic remedy.
Apparently, conservative-leaning groups feel as though there is too much discrimination litigation in North Carolina and have been trying for decades to reduce the number of civil lawsuits in the state. With HB 2, lawmakers finally accomplished this by adding 14 words — a single sentence — to the state’s employment-discrimination law that says: “[No] person may bring any civil action based upon the public policy expressed herein.”
The language does not repeal North Carolina’s law that bans discrimination on the basis of race, sex, age, religion or disability but instead forces workers to seek redress only in the federal system — where access is more difficult, the rules are much more complicated and businesses often have significant advantages. As an attorney who practices civil rights, I always try to stay in the state court system where juries are more reflective of the area and dockets move faster. Meanwhile, defendants always try to remove the case to federal court. For employers, time is a big issue. Under federal law, fired workers have 180 days to file a claim, versus three years in state court. Also, if a worker misses the federal deadline, which is not uncommon at all, they can still sue under state law. Presently in North Carolina, that will no longer be true — it is likely they will be barred from bringing a claim at all.
Now, the Ole Miss Rebels may not have made it to the NCAA Championship game, but you better believe they won’t be outdone by their Tar Heel rivals on the anti-LGBT front! Mississippi followed suit with a law even more sweeping than North Carolina’s, making it easier to discriminate against gender and sexual minorities in the state.
Mississippi’s “Religious Liberty Accommodations Act” is meant to protect people, businesses and organizations with “sincerely held” religious beliefs about the sanctity of traditional marriage. The new law also says gender is determined by “an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” It actually says that in the bill! The measure is more discriminatory than North Carolina’s because it essentially makes it impossible to sue for gender or sexuality discrimination if the motivation for the discrimination was religion — again, affecting more people than just LGBT individuals.
What we can’t forget is that North Carolina and Mississippi were the third and fourth states in the last five years to ban local anti-discrimination ordinances. This is questionable constitutionally because they are all engineered to test the limits of what the U.S. Constitution allows. The 14th Amendment promises equal protection under the law, meaning that governments can’t single out and punish groups of people for no reason. But the Supreme Court has been consistently vague about what that means for LGBT people. That may change soon.
The ACLU, Lambda Legal and Equality North Carolina are all working together in a lawsuit that states that North Carolina’s new law “violates the most basic guarantees of equal treatment and the U.S. Constitution.” Legal experts say this will be a tough case to litigate, but if it proceeds, it has the potential to set a landmark precedent. It may force the Supreme Court to confront a question that for decades it has stubbornly refused to answer: What does the US Constitution actually imply about gay rights?
The trend I’ve seen since marriage equality is that laws like these are passed, the media creates a firestorm, companies and activists respond and then the law is “tweaked” to assuage the firestorm — but ultimately the law remains intact and the media (and therefore the attention) moves on. Until the Supreme Court is squarely faced with a case to decide, we must all remain vigilant to protect the LGBTQ individuals in these states and not become complacent or forget about the egregiousness of these laws whether or not we are directly impacted by them. That is what makes us a family that no one wants to reckon’ with (said in a Southern twang).