North Carolina bans local anti-discrimination policies for gay and transgender people

North Carolina bans local anti-discrimination policies for gay and transgender people

Dalton Homolka, News Reporter

Lawmakers in North Carolina recently passed a state-wide ban on local anti-discrimination policies that grant legal protections to gay and transgender people.

HB2, or the Public Facilities Privacy and Security Act, bans the use of public restrooms that do not match the gender on an individual’s birth certificate. It also nullifies several existing city ordinances that protect gay and transgender people from workplace discrimination.

The measure was signed into law by Gov. Pat McCrory one day after passing through the state’s legislature in an abrupt special session with unanimous Republican support, while Senate Democrats walked out in protest.

Lawmakers rushed the bill through the legislature in response to an anti-discrimination ordinance that was enacted in Charlotte, North Carolina’s largest city. The ordinance would have provided specific legal protection for individuals based on gender identity, gender expression, and sexual orientation.

One highly controversial and publicized section of the law would also allow transgender individuals to use public restrooms based on their gender identity, regardless of their gender at birth.

In its place, North Carolina’s law created a statewide anti-discrimination policy that supersedes local anti-discrimination ordinances. Although it does protect from discrimination based on sex and race, it does not extend the same legal protections to individuals based on sexual orientation or gender identity.

“It’s a version of a law that was passed in Arkansas last year,” said Jason Pierceson, an associate professor of political science at UIS and author of “Same-Sex Marriage in the United States: The Road to the Supreme Court” (2013).

“It basically says that localities in North Carolina cannot add anti-discrimination categories beyond what state law or federal law requires,” Pierceson said.

Kerry Poynter, director of the UIS LGBTQA Resource Office and a past resident of Charlotte, said that many of his friends and colleagues in North Carolina are more than just upset about HB2. “It feels like an attack on them personally,” Poynter said.

“Part of this is the general backlash to LGBTQ rights, particularly with the marriage equality decision handed down last year,” Pierceson said. “Religious conservatives are on the defensive and looking for ways to resist what they see as an immoral expansion of rights for gay people and transgender people.”

This isn’t the first time that a state has attempted to supplant local anti-discrimination policies that protect LGBTQ individuals.

In 1992, a very similar law in Colorado was narrowly defeated in a statewide referendum. Unlike North Carolina’s law, this measure included language that explicitly banned anti-discrimination ordinances based on sexual and gender identity.

The resulting lawsuit brought by LGBTQ activists (Romer v. Evans) culminated in 1996 with a substantial victory in the Supreme Court. In a 6-3 decision, the court ruled that laws specifically banning legal protection based on sexual orientation or gender identity were illegal.

That direct approach was ended because of the ruling in Romer v. Evans, which is why North Carolina and Arkansas used an indirect approach to achieve the same end.

“They don’t specify what categories you can’t protect – they just say you can’t go further than state law, and they know their state law doesn’t protect on that basis,” said Pierceson.

While the exact legality of HB2 has yet to be determined, the American Civil Liberties Union and several other entities went ahead with the decision to file suit against the state of North Carolina soon after the measure was signed into law.

If this case does eventually make it to the Supreme Court – which is a real possibility, according to Pierceson – it would serve as a retest of Romer v. Evans to see whether it can be applied to laws like those in North Carolina and Arkansas.

The state’s ban on local anti-discrimination policies has already drawn the ire of LGBTQ rights supporters in the state and across the country. Numerous business, political, and community leaders have voiced their strong condemnation of what they argue is a policy of discrimination targeted at LGBTQ individuals.

Some of the strongest criticisms come from the business community, which may prove to be the strongest source of pressure on North Carolina lawmakers to repeal the law.

PayPal, which offers online currency exchange, announced a halt to a planned expansion in North Carolina that would have brought at least 30 jobs to the state.

The Dow Chemical Company and Biogen, which employ more than 1,000 people each in Charlotte, also voiced their disapproval of the law on Twitter.

New York State recently joined the cities of Seattle, San Francisco, and New York in restricting non-essential, taxpayer-funded public employee travel to North Carolina, although Pierceson said that this largely symbolic act will likely have less of an impact on lawmakers than that of business interests in the state.

Only time will tell whether or not HB2 will be reversed and repealed. But for those individuals in North Carolina and other states around the country who do face the realities of everyday discrimination based on their sexual orientation or gender identity, the day for justice will have to wait a little bit longer.