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Thursday, March 31, 2016

North Carolina Forbids LGBT Protection, Romer v. Evans, and the Future

By 1992 a number of cities in the State of Colorado (notably Denver and Boulder) had enacted ordinances that prohibited discrimination based on sexual orientation.  This was at a time when gay rights was only just beginning to gain acceptance in the populace at large, and the backlash in Colorado to these ordinances was swift.  In 1992 the voters passed an amendment to the Colorado Constitution that stated:

No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Justice Anthony Kennedy
The amendment was promptly challenged in court and the issue finally settled by the United States Supreme Court in a 6-3 decision entitled Romer v. Evans, 517 U.S. 620 (1996).  The Court, in an opinion by Justice Anthony Kennedy (who has written the opinion in all of the Supreme Court’s major decisions upholding the rights of gay citizens, most recently last year’s opinion granting homosexuals the right to marry), struck down the Colorado Constitutional Amendment as violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  Kennedy stated that there must be a “rational basis” for denying any class of people their rights, which is particularly true when stripping them of rights they had already gained.  [There was dissent by Justice Antonin Scalia, joined by Clarence Thomas and the then Chief Justice William Rehnquist.]

Now along comes the State of North Carolina and does the same thing.  How did they think this was going to play out in the courts?  Or, for that matter, in the court of public opinion, where threats are being made to pull tournaments out of North Carolina by the NFL and the NBA, major corporations are condemning the action, and businesses say they will withdraw their riches from the state?

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The reason the state acted was that a number of municipalities in North Carolina had passed ordinances forbidding discrimination based on sexual orientation.  However Charlotte, the largest city in the state, didn’t enact one until February 22nd of this year, and Charlotte’s ordinance added to the usual list a protection against discrimination based on sexual identity in the use of public restrooms (thus allowing a transgender person to use the bathroom he/she identified with even though it was not the biological sex of birth). 

Many citizens were outraged at idea of “men in women’s bathrooms” and this “bathroom panic” was the leading reason North Carolina’s Governor Pat McCrory promised immediate legislative action.  The North Carolina Legislature backed him up in a special session by quickly passing House Bill 2, which did a number of things: forbade the use of public single-sex bathrooms in the state from being used except by someone whose birth certificate was identical to the sex assigned to the bathroom, wiped out all protection against discrimination based on sexual orientation in municipal ordinances, and forbade municipalities from enacting minimum wage laws or other employee protections at variance with the state law on point.  The new law can be found at, and it’s a dilly to read.

Of course the legislators were aware of Romer v. Evans, so the new law striking down local ordinances doesn’t mention gay rights at all.  Instead it simply declares that uniformity in discrimination laws is an important matter for the state so that any ordinances that give greater protection than state law currently does are annulled.  Ah—you see?—it’s not that gays shouldn’t be protected, it’s that if that’s going to be done it has to be done on a state level.  Alas, North Carolina, like most states, has no state law protecting gays from discrimination.

Now what?  Well there was an immediate lawsuit filed by a group of liberal organizations [the ACLU, Lambda Legal, Equality North Carolina, etc.] challenging the constitutionality of House Bill 2, and Romer is the 500 lb sledgehammer for this  attack. 

Will the suit succeed?  Oh, yes.  It will.

How can I be so sure?  Well, the current makeup of the Court is four liberals, three conservatives, and Justice Kennedy (the swing vote).  Scalia’s death knocked out a sure conservative vote, and the new president will have to replace him.  Obama is already trying to do this, but unlikely to succeed.  If, as seems probable, Hilary Clinton is the new president, a liberal will be added to the Court, and House Bill 2 will be a forgotten failure.  But even if the new president is Ted Cruz the same result will obtain: Kennedy and the four liberals will cite to his opinion in Romer and the four conservatives will futilely file their homophobic dissents.

What is the justice in all this?  Well, let’s start with LGB (minus the T) people.  It’s getting harder and harder to make any sort of argument that its all right to fire people, deny them service, refuse to sell or rent them homes, etc. simply because they are gay or lesbian.  The new issue is whether religious freedom allows such actions, and that one has still to be settled.  But that religious argument is an exception to general protection, not a reason for the sort of blanket denial that North Carolina has just decreed. 

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As for transsexuals and transgender people—human beings whose gender identity is at odds with their biology—that is a new battle, now being contested throughout the country.  Trans people have compelling stories, stories that the general public is just now hearing, stories that can break the heart of any caring person.  This gender confusion frequently starts at birth.  One mother recalls her three year old “son” who happily told her “I’m a girl, Mama.”  Dealing with the trick nature has played here is hard enough without laws making it into a nightmare.

As for the bathroom panic thing, relax, America.  Incidents of trans people sexually misbehaving in public bathrooms are nonexistent.  What some people are really afraid of is STRAIGHT men taking advantage of a law like Charlotte’s to disguise themselves as a woman and cause mayhem in a female bathroom.  I suspect the chances of that too are small—how many men who are truly straight could convincingly dress up as a woman and then believe themselves sexy to women they'd proposition in a restroom?  In any event, the potential problem isn’t with trans people, but with straights misbehaving, so, what the hell, make that a crime.

Another difficulty with House Bill 2 is that none of us carry our birth certificates with us into bathrooms.  Who is going to police this law?  And, as trans people have been gleefully pointing out on Facebook and elsewhere, Governor McCrory (who is up for an interesting reelection contest this year) is going to have to make his wife share public bathrooms the following “birth certificate women”:

And the Governor gets to pee next to this "birth certificate man":

North Carolina has made a fool of itself in its panicked adoption of this embarrassing new law, and will pay the penalty in lost lawsuits, lost business, and lost reputation, while wearing a black stain as a bastion for bigotry.

Related Posts:

A Guide to the Best of My Blog,” April 29, 2013;

“How To Cure Homophobia,” July 30, 2016;

“How To Change Gay People Into Straight People,” September 20, 2010;

“A Homophobic Organization Throws in the Towel: Goodbye to Exodus International,” June 21, 2013;

“Disowning Your Gay Children,” October 9, 2013,

“Are Gays Really Just 1.6% of the U.S. Population?” July 26, 2014;

 “Does the Bible Condemn Homosexuality and Gay Marriage?” June 29, 2014;

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