Why North Carolina Law Is Still Anti-LGBT and Unconstitutional

Boycotters shouldn't be fooled by the so-called "bathroom bill" replacement – it's still harmful

North Carolina Gov. Roy Cooper signed a repeal of the "bathroom bill" on March 30th after it was approved by the Republican-controlled legislature. Credit: Takaaki Iwabu/Raleigh News & Observer/MCT via Getty

On Thursday, North Carolina Gov. Cooper signed a bill repealing House Bill 2, the famously anti-LGBT law enacted last year that has subjected the state to widespread condemnation, boycotts and lawsuits. Passed in response to an anti-discrimination ordinance enacted by the city of Charlotte, HB2 barred transgender people from using public restrooms consistent with their gender identities. It also barred municipalities from passing anti-discrimination laws and invalidated those already in place. Thursday, in a rush to meet a deadline from the NCAA, which had announced it would keep championship events out of the state for six years unless HB2 was repealed, the legislature passed HB 142, which eliminates the bathroom ban, but still prohibits municipalities from enacting anti-discrimination measures for three years. 

But the boycotters shouldn't be fooled, and it's unlikely the courts will be – HB2's replacement is still harmful and unconstitutional.

The U.S. Supreme Court struck down a similar "anti-anti-discrimination" law over twenty years ago in Romer v. Evans. The case concerned an amendment to Colorado’s state constitution that prohibited local governments from enacting measures protecting "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships," which invalidated anti-discrimination ordinances in Denver, Boulder, and Aspen. The lower court had held that, like laws that discriminate based on race or religion, laws discriminating on the basis of sexual orientation should receive the highest level of scrutiny that courts apply in evaluating whether they violate the Equal Protection Clause. The Supreme Court decided it needn't even decide that issue because the government does not have a legitimate interest in expressing animus towards politically unpopular groups and the law was obviously motivated by animosity towards gay people – so the law was so irrational it could not survive even the lowest level of constitutional scrutiny.

Current swing vote Justice Anthony Kennedy wrote for the majority that "making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries." Now, unlike the Colorado law, North Carolina's law doesn't explicitly announce in its text that it is meant to deprive LGBT people of protections from discrimination. In fact, it appears designed to get around Romer. The state can argue it isn't trying to deprive any particular group of protections, it just wants anti-discrimination law to be uniform throughout the state. But in light of the clear purpose of HB2 that shouldn't fly.

Cities have often been ahead of the states in enacting anti-discrimination protections. Charlotte adopted an ordinance prohibiting discrimination based on race, color, religion and national origin in 1968 and added protections against sex discrimination in 1972. The 2016 update to the ordinance added marital and familial status, sexual orientation, gender expression and gender identity to the list of protected characteristics. But state law only prohibited discrimination based on disability.

To reverse the protections put in place by Charlotte, North Carolina used a somewhat more subtle approach than the one that got Colorado in trouble in Romer. Instead of passing a law that prohibited local governments from protecting the particular groups included in Charlotte's ordinance, the state passed its own anti-discrimination law which is limited to the 1970s era set of protections and pre-empted localities from enacting more expansive protections. Thus, North Carolina's law achieved the same objective as the law in Romer of depriving particular groups of legal protections, without having to come out and name the groups it was targeting.

This not-that-clever attempt to get around Romer by writing a facially neutral law should have been enough for a court to find it unconstitutional. But North Carolina went much further with its carnival of animus against transgender people. 

North Carolina's anti-anti discrimination provision was originally part of HB2's bathroom ban, passed days after Charlotte passed its ordinance requiring that transgender people have access to appropriate restrooms. It was widely recognized as a hysterical and discriminatory attack on vulnerable people, which was why major companies abandoned plans to expand operations in the state, the NCAA pulled out, artists cancelled performances and travelers stayed away. It went beyond invalidating Charlotte’s law to require that universities, school districts, and employers persecute thousands of people who had being going about their lives using appropriate restrooms without incident. Defenders of the law portrayed transgendered women as predators who would endanger other women. It’s rare for legislatures to be quite so honest when a law is motivated by animus.

HB142 does not restore the status quo because it bars localities from protecting LGBT people and specifically prohibits protections for bathroom access. Like Trump's Muslim Ban 2.0, HB142 cannot erase the fact that the original law was motivated by unconstitutional animus. To paraphrase the president, it is a "watered down" version of the first one. HB142 is a halfhearted attempt to reverse the economic hit the state has taken thanks to the revulsion HB2 inspired and get its basketball games back. Neither the public nor the courts should accept it.