States, Businesses Urge Court to Strike Down N.C. ‘Bathroom Law’

Allen Smith, J.D. By Allen Smith, J.D. August 15, 2016
States, Businesses Urge Court to Strike Down N.C. ‘Bathroom Law’
H.B. 2 denies transgender individuals access to the public bathroom that matches their gender identity.

Opposition to North Carolina's "bathroom law" has grown, with 10 states filing a brief supporting the U.S. Department of Justice's motion to block the statute and 68 companies submitting another brief with the Human Rights Campaign against the law. 

Based in Washington, D.C., the Human Rights Campaign defends the rights of lesbian, gay, bisexual and transgender (LGBT) people. The companies signing on to the brief ranged from tech businesses like Apple to chemical corporations such as DuPont, hoteliers like Hilton and Marriott, and airlines, including American and United.

H.B. 2, enacted March 23, requires state and local government buildings—including schools, universities, airports and public offices—to require transgender persons to use multiple-occupancy restrooms and locker rooms that correspond to the gender on their birth certificates, but which may not correspond to their gender identity. The law was passed in response to a nondiscrimination ordinance in Charlotte, N.C., which had included protections against discrimination on the basis of gender identity. 

"Transgender people deserve to live with dignity, free from discrimination," said New York Attorney General Eric Schneiderman on announcing the filing of a July 28 brief in favor of revoking the law. California, Connecticut, Illinois, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont, Washington and the District of Columbia submitted the brief.

The supposed privacy and public-safety concerns cited in support of H.B. 2 never materialized, their brief stated.

The states noted that nearly 1.5 million Americans identify as transgender, and that the law has made travel to North Carolina more difficult for their states' transgender individuals.

Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., noted that many cities—including Atlanta, Baltimore, Boston, Chicago, Los Angeles, New York City, Philadelphia, Salt Lake City, San Francisco and Seattle—have banned nonessential travel by city employees to North Carolina in protest.

Connecticut New York, Vermont, Washington and the District of Columbia also have prohibited state employees from nonessential travel to North Carolina.

Business Opposition

H.B. 2 demeans and stigmatizes the approximately 44,000 transgender people living in North Carolina, undermining corporate nondiscrimination policies and making it hard to build diverse workplaces, the 68 companies' July 8 brief stated. According to the Williams Institute at the UCLA School of Law, the more robust a company's LGBT-friendly policies, the better its stock performs. The Williams Institute is a think tank dedicated to research on sexual orientation and gender identity law. 

Moreover, "diverse and inclusive workplaces have been found to be more receptive to new ideas and opportunities," the companies' brief added.
Businesses have responded to H.B. 2 by canceling anticipated investments in North Carolina. PayPal sought an alternative location to Charlotte. Deutsche Bank froze a planned expansion outside Raleigh.

"There is certainly some irony in the fallout of this law's passage," said Todd Solomon, an attorney with McDermott, Will & Emery in Chicago. "While the law was largely passed by a legislature dominated by Republicans predominantly from rural areas, it is the more liberal cities which are being hit the hardest."

However, in an Aug. 8 letter to the Charlotte Observer, Andrew Heath, Gov. Pat McCrory's state budget director, asserted that the law has not hurt the state's economy and dismissed the outcry over H.B. 2 as "a national issue over which millions of people are split. It is an issue that will be resolved in the courts."

In response to the National Basketball Association's decision to move the 2017 All-Star game away from Charlotte, McCrory stated July 21, "The sports and entertainment elite, Attorney General Roy Cooper and the liberal media have for months misrepresented our laws and maligned the people of North Carolina simply because most people believe boys and girls should be able to use school bathrooms, locker rooms and showers without the opposite sex present. Twenty-one other states have joined North Carolina to challenge the federal overreach by the Obama administration mandating their bathroom policies in all businesses and schools instead of allowing accommodations for unique circumstances. Left-wing special interest groups have no moral authority to try and intimidate the large majority of American parents who agree in common sense bathroom and shower privacy for our children. American families should be on notice that the selective corporate elite are imposing their political will on communities in which they do business, thus bypassing the democratic and legal process."

Transgender individuals are feeling the brunt of the law, said Elizabeth Marvin, an attorney with Lewis Baach in Washington, D.C. 

"Because H.B. 2 will be difficult if not impossible to enforce, it will create a culture in which private citizens feel that they have the right and duty to be gender monitors in public restrooms," Marvin said. She cautioned that this "could potentially result in more violence and harassment directed toward transgender individuals."

"Having a law like H.B. 2 makes it difficult for multistate employers to implement a universal standard" on diversity, Phillips added. "It is not surprising that 68 companies have signed on to the brief, as these companies take a stand for diversity and inclusion and fair and equal treatment for all. If H.B. 2 stands, transgender employees, guests and other individuals will be made to feel like second-class citizens."

Similarity to Romer v. Evans

Another argument in favor of blocking H.B. 2 is its similarity to the facts in Romer v. Evans, the companies' brief stated. 

In the 1996 decision of Romer, the Supreme Court invalidated a Colorado constitutional amendment that repealed local ordinances banning discrimination on the basis of sexual orientation and that prohibited local governments from enacting new ordinances to protect people who are gay or lesbian.

North Carolina defends H.B. 2 as treating all people alike in accordance with their biological sex. But Colorado defended its amendment as merely putting gay and lesbian people in the same position as all others. 

The brief concluded that Colorado's amendment was inspired by hostility toward people in the affected class. "Here the state's decision to withdraw from transgender persons alone the possibility of protection by municipal governments similarly signals that the dignity and gender identities of transgender individuals are unworthy of solicitude and respect," stated the companies' brief. "H.B. 2 legitimizes discrimination against transgender persons, humiliates them by denying their gender identities and encourages LGBT discrimination in the broader community. In all of these respects, H.B. 2 does immeasurable and irreparable harm and is contrary to the public interest."



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