Photo credit: North Carolina Department of Transportation/Flickr
By Mark Joseph Stern
On Wednesday night, in the course of just a few hours, North Carolina became the most anti-LGBTQ state in the country.
In a special session called for exactly this purpose—and which cost taxpayers $42,000 a day—the legislature passed a stunningly vicious, completely unprecedented bill stripping LGBTQ North Carolinians of their rights. The measure revokes local gay and trans nondiscrimination ordinances throughout the state, effectively legalizing anti-LGBTQ discrimination, and forbids trans people from using the bathroom that aligns with their gender identity. That includes trans public school students, many of whom will now, in effect, be barred from using the bathroom at school.
Shortly after the legislature passed the bill—over the objections of every Senate Democrat, all of whom walked out of the chamber in protest—Republican Gov. Pat McCrory signed it into law. Explaining that he was eager to nullify Charlotte’s new LGBT nondiscrimination measure, McCrory wrote, “The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte.”
McCrory should know something about government overreach. The gallingly cruel bill he just signed doesn’t just transgress basic norms of decency and morality. It also violates federal law and the U.S. Constitution.
As interpreted by the Department of Education, Title IX of the Education Amendments of 1972 forbids discrimination against trans students in any school that receives federal funding. These schools are prohibited from excluding trans students from the bathroom consistent with their gender identity. The new North Carolina law, dubbed H2, rebukes this federal mandate by forbidding public schools from allowing trans students to use the correct bathroom. That jeopardizes the more than $4.5 billion in federal education funding that North Carolina expected to receive in 2016. Without that money, many schools in the state—from kindergarten through college—will be unable to function. McCrory should prepare to explain to North Carolina parents why their children’s access to education is less important than degrading and demeaning trans students on account of their identity.
HB 2 is also unconstitutional—not maybe unconstitutional, or unconstitutional-before-the-right-judge, but in total contravention of established Supreme Court precedent. In fact, the court dealt with a very similar law in 1996’s Romer v. Evans, when it invalidated a Colorado measure that forbade municipalities from passing gay nondiscrimination ordinances. As the court explained in Romer, the Equal Protection Clause forbids a state from “singl[ing] out a certain class of citizens” and “impos[ing] a special disability upon those persons alone.” Such a law is “inexplicable by anything but animus toward the class it affects,” and under the 14th Amendment, “animosity” toward a “politically unpopular group” is not a “proper legislative end.” Just like the law invalidated in Romer, HB 2 “identifies persons by a single trait”—gay or trans identity—“and then denies them protection across the board.” The Equal Protection Clause cannot tolerate this “bare desire to harm” minorities.