North Carolina GOP Gov. Pat McCrory is officially screwed sued. Pro-LGBTQ legal groups including the ACLU and Lambda Legal filed suit Monday against McCrory and other government officials after NC lawmakers enacted a sweeping anti-LGBTQ equality law last week. Dominic Holden has the details:
“By singling out LGBT people for disfavored treatment and explicitly writing discrimination against transgender people into state law, H.B. 2 violates the most basic guarantees of equal treatment and the U.S. Constitution,” the lawsuit argues.
The complaint argues the law violates people’s equal protection, privacy, and liberty rights under the Fourteenth Amendment to the U.S. Constitution and their civil rights under Title IX of the Education Act of 1972. The lawsuit is asking for a declaratory judgment that the law violates the Constitution and Title IX and an injunction against enforcement of the law.
The case was filed overnight in the U.S. District Court for the Middle District of North Carolina on behalf of Joaquín Carcaño, a transgender man who works at the University of North Carolina-Chapel Hill; Payton Grey McGarry, a transgender man who is a student at the University of North Carolina-Greensboro; and Angela Gilmore, a lesbian who is the associate dean for academic affairs at North Carolina Central University. Also named as plaintiffs are the ACLU of North Carolina and Equality North Carolina.
What's significant about this lawsuit is that two states have already enacted legislation that's somewhat similar to North Carolina's: Arkansas (2015) and Tennessee (2011). Yet, thus far, the pro-LGBTQ legal groups had declined to challenge those laws.
The NC law, House Bill 2 (#hb2), went into effect immediately and is multifaceted in its aim to discriminate. But one of its distinctive qualities (similar to the AR and TN laws) is that it does not explicitly designate LGBTQ people, “gender identity,” or “sexual orientation” for targeting. Instead, it declares that localities cannot grant nondiscrimination protections to groups of people with characteristics not already protected by state law—race, religion, color, national origin, biological sex and in some cases age or disability—which inherently excludes protections based on gender identity and sexual orientation. This is clearly an intent to work around the Supreme Court’s 1996 ruling in Romer v. Evans striking down a Colorado law also intended to block LGBT nondiscrimination protections but doing so by explicitly naming what couldn’t be protected: “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”
Justice Anthony Kennedy, who wrote the opinion striking down that Colorado law, wrote:
[I]ts sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects. [...]
It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
One thing the North Carolina law does explicitly state is that designated bathroom use based on one's "biological sex" isn't discrimination.
Here's Holden again quoting from the 14th Amendment legal challenge filed Monday:
“H.B. 2 was motivated by an intent to treat LGBT people differently, and worse, than other people, including by stripping them of the protections afforded by the City of Charlotte’s Ordinance and precluding any local government from taking action to protect LGBT people against discrimination,” the lawsuit alleges. By doing so, it continues, “H.B. 2 imposes a different and more burdensome political process on LGBT people than on non-LGBT people who have state protection against identity-based discrimination.”
One thing that is clear in this case and perhaps can be demonstrated in court is that North Carolina lawmakers enacted this law as a remarkably swift response to Charlotte's passage of LGBT protections. So even if the law's verbiage isn't explicit in some respects, its intent is clear.
On a press call Monday, an ACLU attorney said it was possible that North Carolina Attorney General Roy Cooper, who has expressed opposition to the law, might “decline to defend” it. The decision about what to do next in that case would likely fall to Gov. McCrory.
In other news, Georgia’s governor vetoed that state’s anti-LGBTQ “religious liberty” bill Monday. On a not-so-positive note, ACLU attorney Eunice Rho told reporters Monday on a press call that nearly 200 anti-LGBTQ bills are still pending around the country.