House Bill 2 lands its first challenge; legal scholars examine prejudice, motives behind the anti-LGBT legislation

By: - March 29, 2016 6:32 am

ACLU_EQUALITY-LAWSUITThree state residents and several gay, lesbian and transgender advocacy organizations filed a federal lawsuit early yesterday morning challenging the constitutionality of North Carolina House Bill 2, the hastily-enacted law that not only targets transgender individuals by limiting their use of public restrooms to those corresponding to their birth sex but also preempts all local non-discrimination ordinances.

We’re challenging this extreme and discriminatory measure in order to ensure that everyone who lives in and visits North Carolina is protected under the law,” Chris Brook, Legal Director of the ACLU of North Carolina, said in a statement yesterday.

This cruel, insulting, and unconstitutional law is an attack on fairness in employment, education, and local governance that encourages discrimination against thousands of LGBT people who call North Carolina home, and particularly targets transgender men and women. HB 2 aims to override local school board policies, local public accommodations laws, and more.”

Together the plaintiffs contend that HB2 violates their Fourteenth Amendment equal protection rights as well as their rights to equal treatment under Title IX and have asked the court to overturn the law.

But the ramifications of the lawsuit could go far beyond that direct relief, legal experts say.

Katharine T. Bartlett, former dean of Duke Law School
Katharine T. Bartlett, former dean of Duke Law School

The suit constitutes a straightforward challenge to North Carolina’s assertion that it can exclude trans people from the bathroom that aligns with their gender identity and nullify local LGBT nondiscrimination ordinances,” Slate’s Mark Joseph Stern wrote yesterday.

But it is also a bold attempt to assert new constitutional protections for gay and trans individuals in the wake of Obergefell v. Hodges.

And ironically the state lawmakers who rushed the bill into law in a patently vitriolic attack on the transgender community will have themselves to blame should enhanced constitutional protections result.

The level of animus displayed by legislators at the time of the enactment of HB2 weighs on the side of a claim by challengers because it shows that the law is not a rational measure to protect bathroom safety, as some legislators and the Governor claim, but a result of prejudice against a disliked group,” Katharine T. Bartlett, professor and former dean of Duke Law School said yesterday.


More than a quarter million LGBT adults live in North Carolina, according to statistics cited in the complaint.

And though a much smaller number – 37,800 people, including 15,600 teenagers in the state — are transgender, they are disproportionately the targets of hate crimes.

They are also the targets of ill-informed state lawmakers who treat transgender status as some sort of condemnable perversion rather than the medically recognized condition that it is.

As Emily Bazelon wrote this weekend in the New York Times Magazine:

North Carolina has plenty of company. The Human Rights Campaign, an L.G.B.T. advocacy group, is tracking more than 175 bills in 32 states, 44 of which focus on transgender people — more than double the number considered last year. This isn’t a regional issue, either. The bills are popping up all over the country, in a variety of forms. The Human Rights Campaign calls them a “reminder of how much work remains to be done in educating Americans about who transgender people are.”

Against this backdrop, conservative lawmakers hailed their colleagues back to Raleigh last week to address a thoroughly-vetted Charlotte ordinance protecting that city’s transgender residents.

And over the course of an abbreviated session that was short on facts and thoughtful debate and long on hateful rhetoric, those lawmakers rammed the bill through and on to the governor’s desk for signature in less than 12 hours.

Here’s Senate President Pro Tem Phil Berger, describing the legislature’s work on the bill:

Lawmakers were forced to come back to session to address the serious safety concerns created by the dangerous ordinance – which violated existing state criminal trespass law, indecent exposure law and building codes and created a loophole that any man with nefarious motives could use to prey on women and young children.”

Sen. David Curtis, justifying the need for passage of HB 2:

The gays would go into a business, make some outrageous demand that they know the owner cannot comply with and file a lawsuit against that business owner and put him out of business.”

And Sen. Andrew Brock, referring to the cost to taxpayers for the special session:

You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are in there.”

The governor took even less time to sign into law a bill that not only impacted thousands of transgender North Carolinians but also, as Chris Sgro, Executive Director of Equality NC noted yesterday, exposed the state to “a loss of federal education funding, revenue from businesses that relocate or choose not to set-up shop here, and potential income-generating sporting and entertainment events.”


The legal arguments made in the complaint filed early Monday in federal court in Winston-Salem build upon a U.S. Supreme Court case decided ten years ago that involved a Colorado law blocking local ordinances protecting LGBT residents.

Writing for a six-justice majority in Romer v. Evans, Justice Anthony Kennedy held that the state had to have more than just hateful animus to justify a law there that precluded LGBT residents from seeking protection from discrimination.

The North Carolina situation would push that analysis further since, unlike in Colorado, HB 2 does not on its face specifically address LGBT status.

This is evolving law,” said Maxine Eichner, a professor at UNC School of Law who specializes in sexuality law.

Maxine Eichner is Reef C. Ivey II Professor of Law. Her teaching interests include sex equality, family law, legal theory and torts. Photography by Steve Exum of Exumphoto on September 4, 2012.
Maxine Eichner is Reef C. Ivey II Professor of Law. Her teaching interests include sex equality, family law, legal theory and torts. (Photography by Steve Exum of Exumphoto.)

The question is how deeply will courts look at what’s happened here, given that the statute on its face is not aimed at precluding protections of LGBT status.”

That evolution is trending in favor of HB 2’s challengers in the lower courts though.

In the employment context, for example, the Equal Employment Opportunity Commission has recently taken the position that gender orientation is protected under federal law, Eichner noted.

The same is true in the education context, with federal agency recognition of transgender discrimination as a form of discrimination based upon sex for Title IX purposes.

The U.S. Supreme Court has not reached the issue directly yet, but the North Carolina case if it plays out in full could spur the court to take on the question of whether those discriminated against because of sexual orientation or identity deserve the heightened protections the high court has already recognized in the marriage context.

It’s important to point out that the only Supreme Court cases that we have in this area deal with discrimination based upon sexual orientation in the private sex area (Loving v. Texas) and in access to marriage (Obergefell v. Hodges),” Duke’s Bartlett said.

Those are already highly protected activities. Here we’re talking about employment and public accommodations, which I would say are actually a very logical next step for the Supreme Court.”

But an ascension of HB 2 to the nation’s highest court could be years away.

In the meantime, real lives hang in the balance.

Now there are some number of kids out there in North Carolina, and adults as well, who are going to be in violation of state law if they don’t disclose some of the most intimate facts about themselves, or they’re going to be precluded from ever going into a bathroom,” UNC’s Eichner said.

These trans kids, their lives are already difficult enough. The idea that their government, supposedly charged with protecting them, has gone significantly out of its way not only to make their lives more difficult but also to make clear its sense of disapproval and disrespect for them is mind-boggling.”


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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.