What are we to make of a state that enacts an obviously unconstitutional law? That’s the question arising out of North Carolina’s recent passage of House Bill 2 (HB 2), a law that takes away existing anti-discrimination rights from LGBT people and makes it impossible for them to seek protection through normal legislative or judicial processes.

The Text of HB 2

In a single day, during a specially convened legislative session (which apparently cost the North Carolina taxpayers more than $40,000), the North Carolina legislature introduced, “debated,” and passed HB 2, which was entitled “An Act to Provide for Single-Sex Multiple Occupancy Bathroom and Changing Facilities in Schools and Public Agencies and to Create Statewide Consistency in Regulation of Employment and Public Accommodations.” Despite a walkout by Democrats in the state senate, which allowed the bill to pass 32-0 and give the appearance of no dissent, HB 2 was presented to the state’s governor, who signed it into law the very same day.

As the title suggests, the bill is focused on (dare I say obsessed with?) bathrooms, but it extends more broadly to curtail protections against employment discrimination.

The bill provides as follows:

On bathrooms – It requires local school boards to establish single-sex multiple occupancy bathrooms and changing facilities. Sex, under this provision, means only biological sex, which is further defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.” School boards can make accommodations for students whose gender identity does not correspond with their legal sex, but the accommodation cannot be simply allowing them to use the other bathroom. They can design a single-user bathroom, permit the transgender student to use a faculty bathroom, or any other option that will make sure that student is never in the presence of students with a different biological sex while using a bathroom or changing. Custodians, EMTs, and student aides may set foot in the “wrong” bathroom if need be. The same rules apply to all bathrooms housed by public agencies (including courts, the legislative and executive branch, and the state’s public universities), and those entities are stripped of the authority to adopt rules contrary to the state mandate.

On employment – At the state level, employees who work for employers with 15 or more employees are protected from discrimination on the basis of race, religion, color, national origin, age, biological sex or handicap. (Before this amendment, this was the list of protected characteristics under state anti-discrimination law, but the adjective “biological” was added.) The new law expressly preempts all local laws, practices, and policies that provide protection against discrimination beyond what is protected at the state level. The new law charges the state’s Human Relations Commission with enforcement of the statewide antidiscrimination rules and requires it to “use its good offices to effect an amicable resolution of the charges of discrimination.” Strangely, though, it also provides that the law “does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” It thus seems to eliminate a right to sue for wrongful discharge on discriminatory grounds that has existed for many years in the state.

On public accommodations – The law provides that discrimination by places of public accommodation are not violated by a rule restricting single-sex bathrooms for use based on biological sex. The law expressly preempts all local laws, practices, and policies that purport to protect against sex-based bathroom discrimination. Again, the law provides that complaints of discrimination can be pursued only with the Human Relations Commission and not in court.



What HB 2 Means and Why It Was Enacted

There are several features of this law that can only be described as unusual—and, trust me, this will turn out to be relevant.

First, the law restricts local efforts to provide more protection against discrimination than is available at the state level. A common feature of our legal system, borne out by many current and historical examples, is that individuals find the broadest protection against harm at the lowest level. Criminal defendants, for example, often benefit from greater protection for their rights under state constitutions than federal constitutions. The federal Bill of Rights is understood to set a minimum standard, which permits states, by statute or constitutional provision, to grant more protection to their citizens—and many do.

In antidiscrimination law, the same is true, but even more so. Most state antidiscrimination laws are broader in at least some respects than their federal counterparts (e.g., Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act). A state law can provide greater protection by applying to smaller employers, eliminating damage caps, enumerating more protected traits and characteristics, providing a longer statute of limitations, and so on. It is thus not at all uncommon for employment discrimination plaintiffs to pursue their claims under both state and federal law, or even only under state law, in order to benefit from these broader protections. Although the North Carolina antidiscrimination law in place prior to HB 2 was not particularly expansive, it did apply to smaller employers than do the federal Age Discrimination in Employment Act or the Americans with Disabilities Act.

It is also true that many local governments provide even more protections than states. New York City, for example, adopted a pregnancy accommodation law two years before New York State adopted a similar law; and Congress has yet to adopt such a law. (A discussion of the New York City and State laws on pregnancy and why they matter can be found here and here.) With respect to LGBT rights, it has certainly been the pattern that rights are often broadest—and adopted first—at the local level. The precursors to the right of marriage equality—now recognized under the federal Constitution, as discussed here—were ordinances adopted first in Berkeley, California, in the 1980s and later in virtually every major city that established domestic partnership registries. Those laws were followed, decades later, by state laws endorsing marriage equality, and not until in 2015 by a Supreme Court ruling under federal law.

Second, HB 2 subverts the entire enforcement system for antidiscrimination rights by providing that only the designated agency can pursue resolution with an alleged offending employer or agency, and that aggrieved individuals cannot pursue their claims in court. To say this is merely an unusual feature of an antidiscrimination law would not be strong enough. Forgive my painting with a broad brush here, but there are two general approaches to the enforcement of employment antidiscrimination laws. Under one approach, the administrative agency (state or federal, and sometimes both) is a necessary first stop for a discrimination plaintiff. Under Title VII, for example, the plaintiff faces an administrative exhaustion requirement that means it must first give the EEOC (or a state agency with a work-sharing agreement with the EEOC) the opportunity to investigate and conciliate the case before filing a lawsuit in court. If the EEOC declines to investigate, or fails to conciliate the case, it gives the plaintiff a right-to-sue letter to indicate the requirement has been met and that hurdle cleared.

Under another approach, the administrative agency serves as an alternative means of enforcement, but not a requirement that must be exhausted before judicial remedies are pursued. Under Title IX, which prohibits sex discrimination by educational institutions that receive federal funding, the Office for Civil Rights in the Department of Education has its own enforcement power—it can bring administrative charges against an offending institution without any private complainant—and it accepts administrative charges by private individuals. But aggrieved students are not required to go through OCR before filing a private lawsuit. They have a private right of action that allows them to sue to enforce Title IX directly, separate and apart from the agency’s efforts. Although these examples are both federal, most state antidiscrimination laws follow one of these two approaches as well. It is thus not a question of whether an aggrieved individual can file suit in court, but when.

Why would a state legislature hastily enact a law that differs so fundamentally from the usual approaches to preventing discrimination? There are two simple explanations. First, the legislature acted to preempt local laws because it did not like that they were granting protection to LGBT individuals. In particular, the legislature was clearly reacting to an ordinance enacted in February by the city of Charlotte, which added “lesbian, gay and transgender” to the list of protected traits for antidiscrimination purposes and provided that transgender people can use public restrooms that correspond with their gender identity. The governor has said explicitly that the law was designed to override the Charlotte ordinance. The new state law does just that and prevents municipalities from adopting any similar provisions designed to protect LGBT individuals against discrimination.

Second, the legislature apparently wanted to ensure that courts would not interpret the state’s ban on sex discrimination to include gender identity or sexual orientation. Its addition of the adjective “biological” to sex in the list of protected characteristics is evidence of this intent (though meaningless, since “sex” under Title VII has always been understood to mean biological sex). But the legislature’s stripping individuals of the ability to enforce the antidiscrimination laws in court and giving that power instead to the executive branch, which clearly shares its animosity towards LGBT rights, maintains control of the statute’s interpretation and enforcement. While Title VII protects against “biological sex” discrimination, this does not preclude courts from deciding (correctly) that the application of a sex stereotype to punish gender non-conforming individuals is discrimination on the basis of biological sex. Thus, effeminate gay men have found protection under Title VII’s ban on (biological) sex discrimination, as have transgender individuals and long-haired straight men. (See examples here, here, here and here.) Nor does it prevent the EEOC from taking the position in litigation or agency interpretation documents that “sex” includes “transgender” and “sexual orientation,” as it has recently done.

In court, state antidiscrimination laws are often interpreted to be co-extensive with, or even broader than, their federal counterparts. It is thus not uncommon for states to rely on federal-law interpretations when interpreting state law. Given the common goal of protecting traditionally disadvantaged groups from discrimination, this mode of analysis is appropriate and consistent with legislative intent. But not in North Carolina, at least not anymore. (The North Carolina Supreme Court held in a 1983 case, Department of Corrections v. Gibson, that the state ban on sex discrimination was co-extensive with Title VII.) Only the executive branch can enforce the antidiscrimination law, and thus only the executive branch can decide which cases to enforce, which positions to take, and which borders to push. But given that the head of this executive branch, Governor Pat McGrory, just signed this law into effect, it’s a good bet that this executive branch will not be enforcing the law in a way that protects LGBT individuals from discrimination even when the conventional understanding of discrimination and sex-stereotyping would militate otherwise.

Enter the U.S. Constitution: Why HB 2’s “Unusual” Features Will Force Its Demise

So one might look at HB 2 and say this is just the cost of a federalist system—that states are free to stake out their own positions as long as they are not preempted by federal law. But then there’s that pesky problem that state laws also need to be constitutional. And this one isn’t. Not even close.

In a 1996 case, Romer v. Evans, the U.S. Supreme Court invalidated a Colorado referendum. “Amendment 2,” as it was known, was very similar to North Carolina’s HB 2 both in purpose and scope. In Colorado, several municipalities had enacted ordinances to protect against sexual orientation discrimination. These ordinances were controversial and, in a statewide referendum, the voters simultaneously repealed all of them and prohibited all legislative, executive, or judicial action at any level of state or local government designed to protect against sexual orientation discrimination.

Amendment 2 was challenged on equal protection grounds. The Supreme Court declined the invitation (as it has continued to do) to recognize sexual orientation as a suspect or quasi-suspect class that would merit heightened judicial review of classifications on that basis. But, utilizing the most deferential standard of review, the Court nonetheless invalidated Amendment 2. It noted how unusual the law was in the way it nullified existing protections in the public and private sphere, and at all levels of government, for a particular group, and even more so because it specifically prevented them from seeking such protections through the usual political process. It departed in virtually every way from Colorado’s usual tradition of enumerating rights.

The Court thus deemed Amendment 2 “unusual”. And, Justice Kennedy wrote, “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” This is so because they raise an inference of “improper animus or purpose” which cannot sustain a law under even the most deferential standard of review. The “Constitution’s guarantee of equality,” the Court observed, “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.” Thus, Amendment 2 was held invalid.

Undeterred by this new precedent, Congress enacted the Defense of Marriage Act (DOMA) just three months later, in September 1996. After ignoring a panel of esteemed constitutional law professors who told Congress that the bill was unconstitutional, Congress enacted DOMA with overwhelming majorities in both houses and was signed into law, strangely, by President Bill Clinton. It took seventeen years, but DOMA was eventually declared unconstitutional as well. The Court, in a majority opinion again written by Justice Kennedy, in United States v. Windsor (2013), held that DOMA was itself a discrimination of unusual character. (A more detailed analysis of the opinion can be found here.) Here, the departure was in ignoring the federal government’s longstanding practice of deferring to state-law determinations of marital status when administering federal programs like Social Security and parsing out federal rights and benefits; instead, under Section 3 of DOMA, a valid same-sex marriage could not be given effect for any federal-law purpose. The federal government does have the power to define marriage when doing so is essential to carrying out federal policy obligations—say, for example, to determine whether a marriage is genuine for purposes of marriage-based immigration—and it might have the power to do it just because. But when it does so for only one type of marriage, but for all types of rights (marital status is relevant to more than 1,000 federal statutes), amid an anti-gay-marriage fury that Congress both recognized and fomented, the government’s motives can be called into question. Thus, Justice Kennedy wrote,

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

The Court in Windsor thus invalidated the federal-law provision of DOMA based, in large part, on Romer. Two years later, it invalidated all remaining state bans on the celebration and recognition of marriage by same-sex couples in Obergefell v. Hodges, although this ruling relied on a broader set of principles.

Conclusion

Suffice it to say that North Carolina’s HB 2 is Romer redux. The unusual character and scope of the law, the speed (and lack of deliberation) with which it was enacted, and express statements of its anti-LGBT purpose are enough to render the law unconstitutional under Romer, an opinion that was only made stronger by Windsor. HB 2 is nothing if not a discrimination of an unusual character. (That the law does not expressly mention LGBT discrimination makes no difference; the Supreme Court has held many times that a neutral law passed with the intent to discriminate can be challenged under the Equal Protection Clause.)

Moreover, given the weight and direct applicability of Windsor, it had to be abundantly clear to the North Carolina legislature that its law would be eventually declared unconstitutional. What better way to display bare animus against a particular group than to pass an invalid law disadvantaging them just to make a point? The obvious defects in the law make the inference of bare animus even more appropriate than in Romer, when Colorado voters were working with a clean constitutional slate.

And as to the bathrooms? The provisions affecting public schools violate the Department of Education’s interpretation of Title IX, which could cost the state billions if OCR brings an enforcement action. Moreover, the bathroom-panic strategy is old and tired. Although Phyllis Schlafly denies ever speaking of unisex bathrooms, her anti-ERA strategy fueled a bathroom panic that might well have been the straw breaking the camel’s back in the 1970s when an insufficient number of states ratified the proposed constitutional guarantee of sex equality. Could we just agree to stop using bathrooms as a pretext for discrimination?