North Carolina’s odious HB 2 law was passed recently, and an article (which can be found here) by Mark Joseph Stern provides a great rundown of both this legislation’s effects and a constitutional argument for why the law should not pass muster with the federal courts. This response aims to engage with the constitutional ideas Stern advances, detailing where he is right and where he misses the mark. First this article considers the effects that HB 2 has on trans persons’ restroom access, considering the constitutionality of the relevant provisions, then it performs a similar analysis of the portion of HB 2 impacting local LGBTQ+ nondiscrimination ordinances in North Carolina.
Trans rights
HB 2 provides that all educational authorities in North Carolina must segregate restrooms on the basis of “biological sex,” which this law tethers to the sex stated on one’s birth certificate.
This represents a fairly straightforward instance of the application of stigma to a disfavored class (to borrow from the Supreme Court’s language in the Obergefell v. Hodges (2015) decision), namely transgender persons. HB 2 is such a clear-cut violation of trans persons’ constitutional protections under the Equal Protection and Due Process clauses of the 14th Amendment that there is not much more that needs to be discussed. In short, I fully agree with Stern’s analysis as to this part of HB 2, and have little of substance to add to the words he chose so well. Trans persons are in a remarkably unremarkable situation: they wish to use the restroom that conforms to their gender identity. The fact that their gender identity happens to not coincide with their sex at birth provides no compelling basis for the government to, on the basis of irrational animus, force them to use a restroom that does not accord with their gender. I would invite readers to examine this picture of a trans man. If you think this person should be using the women’s restroom, then there’s nothing I can do for you.
Nondiscrimination
While Stern’s arguments about the unconstitutionality of HB 2 as regards its effects on trans persons are valid, his points about LGBTQ+ nondiscrimination are not.
HB 2 preempts LGBTQ+ nondiscrimination ordinances that had been passed by some local authorities in North Carolina, insisting that they may not extend legal protections beyond what is provided for in that state’s law.
Stern starts by declaring that HB 2 has the effect of “legalizing anti-LGBTQ discrimination,” and there can be little dispute about that. However, just because something may be morally repugnant does not make it a violation of the federal Constitution; there is no “moral repugnancy” clause upon which LGBTQ+ North Carolinians can rely for protection.
Stern lists a plethora of justification for why courts should hold that HB 2’s provisions preempting local nondiscrimination ordinances are unconstitutional, none of which are persuasive.
He first claims that the Supreme Court has already effectively held the law unconstitutional via its holding in Romer v. Evans (1996). The problem lies with the fact that Stern equates what HB 2 does with what the Colorado law overturned by Romer did. The latter was a state amendment specifically declaring that no jurisdiction in the state could “enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute” a basis for a nondiscrimination claim. HB 2 did something that appears similar at first glance, since by limiting all local authorities’ nondiscrimination ordinances to those already covered under North Carolina state law, it had the effect of repealing LGBTQ+-inclusive protections (as did the Colorado amendment). However, there is a crucial distinction between them: the Colorado amendment specifically barred protections being offered to homosexuals, whereas the North Carolina legislation has the effect of forbidding local governments from offering protections to anyone of any sexual orientation. Whereas the Colorado amendment clearly sought to stigmatize LGBTQ+ people, it is simply not clear for purposes of law that the North Carolina law does the same. As a political matter, one is free to believe that the North Carolina legislature clearly intended to ensure that LGBTQ+ persons have no nondiscrimination protections (as I do). However, the fact remains that the law cannot be said to “target” LGBTQ+ persons, because it also strips heterosexuals of the same protections. The same cannot be said of the Colorado amendment, which left open the possibility that legislation could have been passed to bar discrimination against persons of a heterosexual orientation. By doing so, Colorado had clearly established heterosexuals as a superior class of persons, ones entitled to legal protections from discrimination that similarly-situated LGBTQ+ persons were not. In that way the amendment violated the Constitution’s Equal Protection guarantee, since the Colorado government was clearly not protecting its citizens equally. It also violated the Due Process clause of the 14th Amendment by effectively mandating inferior treatment of LGBTQ+ persons, in effect treating them as criminals in the eyes of the law despite their having committed no crime. The North Carolina law, by stripping everyone regardless of their sexual orientation of nondiscrimination protection, did not target LGBTQ+ persons in the same way. The state government is not treating anyone differently: EVERYONE is no longer protected from discrimination on the basis of their sexual orientation.
The obvious rejoinder to this is that heterosexuals more or less never actually need nondiscrimination protections on the basis of their sexual orientation, and thus the law clearly targets LGBTQ+ persons in an indirect fashion. While this is all but indisputably true, that does not automatically mean there is necessarily a constitutional remedy. It should be noted that the Constitution creates positive rights only in limited, extraordinary circumstances. Indeed, the document, by its very nature, is oriented toward creating restrictions on what the government can do. The government cannot forbid LGBTQ+ persons from entering into the institution of marriage (assuming they are similarly situated to their heterosexual counterparts in all areas other than the gender composition of their coupling). The government cannot forbid students from wearing anti-war armbands (Tinker v. Des Moines School District (1969)). The list goes on, but the through line running through all such examples is that the government is being forbidden from taking an action, NOT being ordered to undertake an action. There are cases where exceptions to this rule are made. This happened most famously in regards to school desegregation, wherein the Supreme Court prevented Southern states from abolishing their public school districts in those states’ attempt to make an end run around Brown v. Board of Education I (1954). What distinguishes that line of cases from what is happening with HB 2 is that the Southern states were attempting to contravene a clearly-established constitutional right, namely the right to not be discriminated against on the basis of race. However, there exists no such right for LGBTQ+ persons, at least not now. What fairly recent Supreme Court case law has established is that same-sex couples cannot have their sex criminalized (Lawrence v. Texas (2003))or be restricted from marrying; the Court has never said that same-sex couples, let alone all LGBTQ+ persons, are entitled to protections along the lines of something like strict scrutiny analysis. Perhaps it should, though there is some question as to whether or not even the application of strict scrutiny would result in the striking down of HB 2 (for the simple reason that, to restate, the Constitution generally only places restrictions on government actions — it does not mandate that the government must undertake any action, such as passing a nondiscrimination law of any kind).
Circling back to Stern’s argument that by stripping LGBTQ+ persons of nondiscrimination protections they had enjoyed HB 2 violates the Constitution by “singl[ing] out a certain class of persons” and “impos[ing] a special disability on those persons alone,” as stated in Romer; the reality is that the Constitution does not require any governments to provide any nondiscrimination protections to anyone on any basis. Firstly, it is worth reemphasizing that LGBTQ+ persons are not having a ‘special disability’ placed upon them (as was the case in Colorado) because heterosexuals have similarly been stripped of their rights and protections. A second and more important point to make is that while some may feel that failing to provide any nondiscrimination protections to anyone (or only to a very limited number of categories) is an unwise public policy choice, that does not make an unconstitutional one. There is nothing unreasonable or facially discriminatory about a state deciding it wants to pursue a libertarian path of minimizing the government’s presence in the lives of its citizens, and choosing to do so by, in part, not offering any basis for filing a discrimination suit (or at least offering as few bases as possible). I, as an individual, would not agree with that course; that does not provide a basis for me to say that it is unconstitutional.
Stern goes on to cite Arlington Heights v. Metropolitan (1977), listing the questions that the Supreme Court asked there as it sought to determine whether or not an Illinois municipality had engaged in unconstitutional racial discrimination in refusing to allow the construction of an apartment complex. He presents the questions as a damning indictment of HB 2, yet leaves out one incredibly important detail: the Supreme Court’s holding in that case found that the Illinois municipal authority HAD NOT engaged in discrimination! In other words, he asks a series of questions whose answer lead to the conclusion that there was no discrimination (at least in the context of that case).
Finally, Stern brings in Reitman v. Mulkey (1967), which held that states can be found to have violated the Constitution when they actively partner with private parties in engaging in discrimination against protected groups. In that case, California voters passed a law stating, in relevant part, that neither the state nor any of its agencies “shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.” What sets this apart from HB 2 is its all-but-explicit endorsement of racial discrimination, which can be arguably found to be a violation of the 14th Amendment. In the case of the North Carolina law at issue, the reality is that no such explicit endorsement is offered. All HB 2 dictates is that local authorities may not extend nondiscrimination ordinances beyond the bounds of state law, and North Carolina state law fails to offer protection to anyone (gay or straight, cisgender or transgender) on the basis of sexual orientation and gender identity. Nowhere does the state make any actual active statements encouraging discrimination, as was arguably the case in Reitman. North Carolina law’s silence as to discrimination against LGBTQ+ persons is simply not the same thing as California’s loud endorsement of racial discrimination.
Conclusion
HB 2’s “restroom provisions” are clearly unconstitutional. The resolution of whether or not HB 2’s repeal of LGBTQ+-inclusive nondiscrimination ordinances really comes down to whether or not one believes it is constitutionally acceptable to not have LGBTQ+ nondiscrimination protections in state law. If relevant precedent was applied in the way that Stern suggests it should be, then it seems that the only logical conclusion one can reach is that any state that is not actively restricting discrimination on the basis of sexual orientation and gender identity is violating the Constitution. The reality is that this simply does not make sense. As stated earlier, one may disagree with libertarian notions of minimizing governmental intrusion into the lives of citizens (which lends itself to the idea that there should be as few laws creating a basis for claims of discrimination as possible), but that does not make them unconstitutional.