North Carolina's anti-LGBTQ law just suffered a big setback in court

North Carolina's law combines two types of anti-LGBTQ measures: laws allowing discrimination against LGBTQ people and anti-transgender bathroom bills.

photo North Carolina's anti-LGBTQ law just suffered a big setback in court images

    North Carolina's anti-LGBTQ law suffered a significant defeat on Friday.

    US District Court Judge Thomas Schroeder issued a preliminary injunction against part of the law, ordering the University of North Carolina to not enforce sections barring transgender people from using the bathroom for their gender identity. The ruling does not mean that North Carolina's law is finished — it still must go through the full court process, including appeals, before the fate of the law is fully decided. But it suggests that North Carolina's law may be doomed, at least partially, in the future.

    The decision came after the ACLU brought a lawsuit on behalf of several North Carolina residents arguing that the law — particularly the sections that force trans people to use the bathroom that aligns with the gender they were assigned at birth, instead of their gender identity — violates the Constitution and federal civil rights protections.

    The court held that North Carolina's law likely violates federal civil rights protections, based in part on a previous ruling by the Fourth Circuit Court of Appeals. It also found evidence that the law would do harm on the plaintiffs if it was allowed to stand. Together, those two pieces sufficed for a preliminary injunction on the University of North Carolina's enforcement of the bathroom provisions — although the court did not reach a clear decision on the ACLU's constitutional claims.

    According to ACLU (and the US Department of Justice), the Civil Rights Act's Title IX, which prohibit sex discrimination in the education, also apply to trans people and gender identity — since this kind of discrimination is fundamentally rooted in expectations of how people of certain sexes should behave and act. So by limiting which bathrooms trans people can use, the state is, according to the ACLU, violating federal civil rights protections that shield trans people from discrimination.

    Ultimately, higher courts will decide whether existing federal civil rights laws really do protect trans people, as the ACLU and Justice Department claim. That could be a big deal: Existing federal law doesn't currently apply explicitly to trans people. So if courts side with the federal government, they could effectively expand existing civil rights protections that ban discrimination based on race and sex, among other traits, to gender identity.

    That could, for the first time, make federal law shield trans people from discrimination in the workplace, housing, and education — although not public accommodations (restaurants, hotels, and other places that serve the public), because sex discrimination isn't banned under federal law in those settings.

    North Carolina's law also prohibits local laws that include sexual orientation and gender identity in nondiscrimination protections, meaning anti-LGBTQ discrimination in the workplace and other settings is largely legal under North Carolina law.

    The federal district court's actions are just the latest blow to the state's anti-LGBTQ law. Before this, the backlash had already led to businesses boycotting the state and decreased support for Gov. Pat McCrory and Republican lawmakers, who passed the measure. At this point, the situation seems to be getting worse and worse for the state.

    How North Carolina got to this point

    On March 23, North Carolina lawmakers proposed and passed — within just 24 hours — a combination of some of the most anti-LGBTQ measures proposed in the US, codifying the legality of discrimination based on sexual orientation and gender identity into law.

    The measure came in response to the government of Charlotte, North Carolina, in February attempting to ban businesses from discriminating against LGBTQ people, much in the same way businesses can't discriminate against people based on their race or religion today.

    North Carolina's leaders didn't like the idea. Prior to the ordinance's passage, Gov. McCrory warned that the Charlotte city council's passage of such a law would most likely cause the state to overturn the measure. House Speaker Tim Moore echoed the sentiment shortly after the ordinance passed.

    Then, on March 23, the North Carolina legislature held a special, $42,000-a-day session to pass a sweeping anti-LGBTQ bill that not only repeals Charlotte's ordinance, but bans future local laws that protect LGBTQ people. And on the exact same day, the governor signed the bill into law.

    What North Carolina's law does

    The law does two big things:

    The statute overturns and bans local laws that don't conform to the state's nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn't ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings. It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they're forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed in North Carolina through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it's not required.

    In other words, the law is a mix of two types of anti-LGBTQ measures: laws that ban local nondiscrimination measures for LGBTQ people and an anti-transgender bathroom bill.

    It's a startling piece of legislation — one that Sarah McBride of the Center for American Progress called "one of the most extreme, anti-LGBT bills we've seen yet."

    In response to the backlash to the law, Gov. McCrory issued an executive order that protected LGBTQ state government employees from discrimination. But the order left the two controversial aspects of the law — the anti-trans bathroom provision and prohibition on municipalities passing their own laws protecting LGBTQ people — in place.

    LGBTQ advocates, led by the ACLU, quickly filed a federal lawsuit against the law, calling for an injunction against the statute's enforcement. The lawsuit argues that North Carolina's legislation violates LGBTQ people's constitutional rights, particularly equal protection rights under the 14th Amendment, by singling them out for discrimination and fewer protections. It also claims that North Carolina's statute violates federal law, particularly Title IX, which prohibits sex discrimination — and, based on federal agencies' reading of the law, anti-trans discrimination — in schools.

    The Department of Justice, for its part, seemed to agree with part of the lawsuit, ordering the state to stop enforcing the law or risk losing at least some of the billions in annual federal funds for education that are tied to Title IX. North Carolina officials responded with a lawsuit, arguing that the federal government was misinterpreting federal laws. The Justice Department responded with a counter-lawsuit, standing its ground.

    Charlotte tried to fill a hole in the state law that keeps anti-LGBTQ discrimination legal in public places

    North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.

    Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city's existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.

    Most North Carolinians support these legal protections: In a 2015 survey by the Public Religion Research Institute, 64 percent of North Carolina respondents said they favor laws that protect LGBTQ people from discrimination in jobs, housing, and public accommodations. That was a little below the national average of 71 percent, but still a strong majority in favor of such protections.

    Some cities in North Carolina already forbade workplace discrimination against LGBTQ people, but the state as a whole currently legally allows anti-LGBTQ discrimination in the workplace, housing, and public accommodations. (Again, federal and state laws forbid workplace, housing, and public accommodations discrimination on the basis of, for example, race.)

    But North Carolina legislators opposed these local laws, and passed their own law to overturn the local measures.

    The move triggered a national firestorm. PayPal and Deutsche Bank pulled expansions into the state that would have created hundreds of jobs. Several musicians, such as Bruce Springsteen and Pearl Jam, canceled concerts in the state. A+E Networks and 21st Century Fox said they would reconsider using North Carolina as a filming location in the future. And nearly 200 CEOs signed a letter asking Gov. McCrory to repeal the law.

    Meanwhile, support for North Carolina Republicans has, based on recent polls, tanked in the traditionally conservative state. Some surveys also show more North Carolinians oppose the anti-LGBTQ law than support it.

    This was entirely predictable, as other states that passed anti-LGBTQ laws have faced similar consequences. In 2015, when Indiana passed a religious freedom law that was widely misinterpreted as allowing anti-LGBTQ discrimination, businesses and celebrities threatened boycotts, drawing widespread media coverage. Eventually, the controversy forced the state legislature to clarify that the law is not meant to allow discrimination against LGBTQ people, but only after reportedly hurting its tourism industry.

    But North Carolina lawmakers, including McCrory, have stood their ground, citing an often-used myth against LGBTQ protections.

    North Carolina legislators touted the "bathroom myth" to defend their opposition to a ban

    Behind Gov. McCrory and other North Carolina lawmakers' opposition to Charlotte's ordinance is the bathroom myth: the idea that if trans people are legally allowed to use the bathroom that corresponds to their gender identity, men will take advantage of the law to enter women's bathrooms to harass and sexually assault women. McCrory and others cited this myth to argue that Charlotte's law raises public safety concerns.

    But even with the Charlotte ordinance, sexual assault remained illegal in Charlotte and North Carolina.

    Moreover, there's absolutely no evidence that the passage of nondiscrimination laws leads to more sexual assaults or harassment.

    Experts from 12 states with laws that protect LGBTQ people from discrimination told Media Matters that they don't know of a single reported instance of sexual assaults in bathrooms stemming from the laws.

    In another investigation, Media Matters also found that 17 school districts around the country with protections for LGBTQ people, which collectively covered more than 600,000 students, had no problems with harassment in bathrooms or locker rooms after implementing their policies.

    For trans people, the big issue is that North Carolina is trying to push them into acting as someone they're not. Forcing trans people to use the bathroom that doesn't align with their gender identity acts as a reminder that, as far as society has come on some LGBTQ issues, it's still not completely willing to accept trans people and their identities — even if trans people pose no danger to anyone else.

    If trans people do use the bathroom they want, they also have to fear getting caught as they break the law. As Lily Carollo wrote for Vox, "From now until the law is repealed or settled in court, or until my birth certificate is amended, I will keep breaking the law. I'm not the only one. I will be an anxious mess every time I use the bathroom, but I don't see any option. It's all I can do, really. I am a woman."

    Still, the myth remains prominent. In Houston, it was one of the ideas opponents of a nondiscrimination law used to get people to vote against the local measure. And now North Carolina lawmakers used the myth to strike down all local ordinances that merely forbid some forms of anti-LGBTQ discrimination.

    But as the backlash grows, it's unclear just how long the law will last.

    North Carolina isn't the first state to forbid local LGBTQ anti-discrimination laws

    The North Carolina law is sweeping and extreme, but the state isn't the first to pass something like it.

    In Arkansas, for example, it's already illegal for municipalities to ban discrimination against LGBTQ people in the state.

    The cause: In 2015, the legislature passed the "Intrastate Commerce Improvement Act," which requires cities' and counties' nondiscrimination laws to match state laws. Since Arkansas doesn't include sexual orientation or gender identity in its civil rights laws, the act nullified local LGBTQ protections that existed at that point and banned future measures.

    Arkansas legislators claimed the intent was to keep the state's nondiscrimination laws uniform, but the law clearly targeted places like Fayetteville, Arkansas, for passing ordinances that would have prohibited anti-LGBTQ discrimination.

    When Arkansas passed this law, LGBTQ advocates told me that they feared this type of measure would eventually spread to other Republican-controlled states. North Carolina has been the first state to turn those fears into reality.

    Transgender people: 10 common myths

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