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Demonstrators chained themselves together during a Friday protest against HB 2 in front of the Governor's Mansion in Raleigh, N.C. (Photo: Jill Knight/AP)

North Carolina Sued by Rights Groups Over Unprecedented Hate Bill

If the lawsuit is successful, transgender people across the country could be constitutionally protected from discrimination for the first time

Nika Knight, staff writer

"North Carolina legislators cannot strip equality out of the Constitution and the law," declared the American Civil Liberties Union (ACLU) on Monday, as it announced that it was jointly filing a lawsuit (pdf) against North Carolina's extreme anti-LGBTQ law passed last week. Advocacy groups Lambda Legal and Equality North Carolina also joined the suit.

Protests swept the state late last week when news of the "hate bill" broke on Thursday morning. 

"No legislature should be using its power to require cities, counties, or school districts to discriminate against anyone. This law is a targeted and unprecedented attack on the LGBTQ community, particularly against transgender people, both young people and adults," argued Tara Borelli, senior attorney with Lambda Legal.

The new law, HB 2, mandates discrimination against LGBTQ citizens: transgender people are barred from using public bathrooms not assigned to their "biological sex," corporations are permitted to discriminate against anyone at will without repercussion, and no one may file suit in state court if they feel they have been discriminated against for any reason—including race, sex, and religion. Instead, they will be forced to pursue those claims in federal court. The unprecedented measure also bans municipalities from passing their own minimum wage laws.

The legislation was introduced and signed into law in only a day, in an unprecedented legislative process that the lawsuit alleges was "rife with procedural irregularities."

"Lawmakers made no attempt to cloak their actions in a veneer of neutrality," reads the complaint, "instead openly and virulently attacking transgender people, who were falsely portrayed as predatory and dangerous to others."

The ACLU describes the suit:

In the complaint being filed today, the plaintiffs allege that through HB 2, North Carolina sends a purposeful message that LGBT people are second-class citizens who are undeserving of the privacy, respect, and protections afforded others in the state. The complaint argues that HB 2 is unconstitutional because it violates the Equal Protection and Due Process clauses of the Fourteenth Amendment because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The law also violates Title IX by discriminating against students and school employees on the basis of sex. 

The lawsuit is being filed on behalf of a transgender college student, a transgender university employee, and a lesbian professor, all of whom study or work in the state's public university system. The ACLU reports that the case was "filed in the U.S. District Court for the Middle District of North Carolina against North Carolina Governor Pat McCrory, Attorney General Roy Cooper, and the University of North Carolina."

"Clearly HB 2 is unconstitutional," Borelli argued, "as it not only violates the guarantees of equal protection and due process in the U.S. Constitution but it also violates Title IX by requiring discrimination in education. North Carolina legislators cannot strip equality out of the Constitution and the law."

The lawsuit "effectively highlights the direct clash between HB 2 and an existing federal mandate [that  prohibits discrimination against trans students in schools that receive federal funding]," writes Slate contributor Mark Joseph Stern, "forcing the state to choose between continued discrimination and continued education funding."

Stern predicts that "if the ACLU succeeds, trans people across the country would instantly receive considerable constitutional protection."

He argues, "under the Equal Protection Clause, sex discrimination is subject to heightened scrutiny, requiring an 'exceedingly persuasive justification' to survive constitutional review. If trans discrimination is sex discrimination, then any anti-trans law, too, would have to be supported by an 'exceedingly persuasive justification.'"

Such a judgment could mean the end of so-called "bathroom bills," such as HB 2, which are based on the widely derided "notion that sexual predators pretend to be trans in order to assault women in bathrooms," an idea that has been thoroughly debunked, as Stern notes. And so "the ultimate result" of North Carolina's discriminatory law, Stern hopes, "might just be an affirmation of trans equality by the federal judiciary."

Also on Monday, Georgia Gov. Nathan Deal announced that he would veto a bill that would have enshrined a right to discriminate against LGBTQ people if the person or business doing so claimed it was for religious reasons.

"Churches and affiliated religious groups could have used their faith as an argument for refusing to serve or hire someone" under that law, ABC reported.

The Republican governor said he would veto the bill after Coca-Cola, the NFL, and other companies lobbied him to do so and threatened to take business out of the state, as large companies in North Carolina have also done.

Those corporate threats may not carry much weight, however, as reporting from The Intercept found that the very same corporations publicly denouncing the North Carolina law also funded the state lawmakers who passed it.

LGBTQ advocacy groups hailed the Georgia governor's veto as a victory—but state lawmakers are ominously promising to convene a $41,000 special legislative session to override the veto, in a process reminiscent of the one through which North Carolina's own anti-LGBTQ law was passed.

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