Shortly after coming out of the closet in college, I traveled from Washington state to North Carolina as a prospective law student at Duke. It was 2005 and I had my concerns about being an out gay man in the South. But those worries were partially allayed by the warmth and charm of the people I met. I recall my first meal in North Carolina, where I was introduced to the glorious world of Southern fried food by way of the hushpuppy, all the while being referred to genteelly as “honey.” I could get used to this, I thought.
And I did. It was while I was at Duke that I became fully comfortable being out about my sexual identity and met my now-husband. In fact, so smitten were we with our time in North Carolina, that our dog’s name is “Durham.” And I continue to visit North Carolina, having taught a course on Sexual Orientation, Gender Identity & the Law at Duke Law School in January.
But North Carolina has just lost some of its renowned charm; it just moved back in time. On Wednesday, Gov. Pat McCrory signed House Bill 2, enacting several new provisions unambiguously targeting LGBTQ individuals for legalized discrimination. These new measures are not only backward, they are unconstitutional, and will have negative consequences for the state and all of its residents.
First, the law purports to override any local ordinance designed to protect against LGBT discrimination by employers or public accommodations. In February, the largest city in North Carolina—Charlotte—passed a law prohibiting public accommodations from discriminating on the basis of sexual orientation or gender identity. In direct response, and based on inaccurate and unsubstantiated fears regarding transgender individuals, Gov. McCrory and the state Legislature passed House Bill 2, which by its terms is intended to “supersede and preempt” any local law attempting to regulate discrimination.
In other words, for the North Carolina government, the absence of statewide anti-discrimination protections for LGBT individuals is not enough. They want to affirmatively make sure no local community provides such protections either.
Not only does this law expose as pretext conservative orthodoxy regarding federalism and the importance of local government, but it also likely runs afoul of the Supreme Court’s decision in Romer v. Evans. There, the Court overturned a similar Colorado law that precluded municipalities from adopting laws prohibiting discrimination on the basis of sexual orientation, and repealed any such laws already in force.
As Justice Kennedy emphasized, respect for principles of equal protection “explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” According to the Court, the Equal Protection Clause of the U.S. Constitution prohibited Colorado from enacting a specific legal disability on and demotion in legal status for lesbian, gay and bisexual individuals. That same prohibition exists today, and extends to render North Carolina House Bill 2 unconstitutional.
Second, the North Carolina law requires schools and public agencies, including the University of North Carolina, to ensure that “every multiple occupancy bathroom or changing facility ... be designated for and only used by persons based on their biological sex.” This provision, too, is unconstitutional.
As several federal courts have held, the Due Process Clause limits the government’s ability to “out” individuals’ sensitive, intimate information. Such protected information includes one’s LGBTQ identity. In fact, multiple courts have recognized that this right to “informational privacy” extends to laws that indirectly out transgender individuals. For example, courts in both Alaska and Michigan have held that policies that greatly restrict trans individuals’ ability to change the gender marker on their driver’s licenses indirectly outed trans people—each time they present their identification, the dissonance between their outward gender expression and the gender marker reveals that they are transgender or gender nonconforming. Such outing potentially exposes transgender individuals to discrimination and possibly violence.
Here, House Bill 2 outs transgender individuals in both direct and indirect ways. Directly, by mandating that public agencies and schools “require” that bathrooms be “used by” only those whose “biological sex” corresponds to the gender assigned to the bathroom; North Carolina seems to envisage some sort of invasive enforcement regime that would affect all people—not just transgender individuals. How is a school or public agency supposed to make quick judgments about someone’s biological sex? And while “biological sex” is defined as the “physical condition of being male or female, which is stated on a person’s birth certificate,” certainly it’s uncommon for people to walk around with their birth certificates.
Indirectly, even if the law could be enforced absent an invasive search, North Carolina only permits the sex listed on a birth certificate to be changed if a person undergoes “sex reassignment surgery.” Many transgender people cannot or choose not to undergo surgery, either because it is too expensive or it's unnecessary for them to fully express their individual gender identity. For those trans people who have not had surgery, and therefore do not have an accurate birth certificate, they will be forced to use a restroom that is incongruent with their gender expression. Meaning that every time a trans man uses the female restroom as required by House Bill 2, he will be outed as transgender. As noted, such indirect outing violates our constitutional rights to informational privacy.
Moreover, to the extent that House Bill 2 requires public schools to discriminate against transgender individuals, it may run afoul of Title IX, endangering federal funding for North Carolina public education.
Finally, House Bill 2 also limits the ability of local governments to institute their own minimum wages. While not specifically targeted at LGBTQ individuals, this provision highlights the fact that fights for social justice are often linked, often intersectional. This law will negatively impact all working people and families, queer and straight alike.
While I know that these measures are deeply disturbing and unfortunate, and that many people are hurting today, I also know the North Carolina LGBTQ community and their allies are resilient. My hope is that all North Carolinians will work to undo the negative effects of House Bill 2, regaining some of that famed Southern charm, and ensuring that all residents, students, tourists and business travelers feel welcome.
Scott Skinner-Thompson is an acting assistant professor at New York University School of Law and teaches a course on Sexual Orientation, Gender Identity, and the Law at Duke University School of Law.