March 28, 2016 at 11:16 am EST | by Chris Johnson
Lawsuit seeks to overturn N.C. anti-LGBT law
North Carolina, gay news, Washington Blade

A new lawsuit has been filed against the anti-LGBT law in North Carolina. (Screen capture courtesy WRAL)

Amid continuing anger over an anti-LGBT law enacted in North Carolina, LGBT legal groups and LGBT residents of the state filed a lawsuit Monday seeking to overturn the measure.

The lawsuit against House Bill 2, filed before U.S. District Court for the Middle District of North Carolina, asserts the measure “violates the most basic guarantees of equal treatment and the U.S. Constitution” by targeting LGBT people.

“While the discriminatory, stated focus of the legislature in passing HB 2 — the use of restrooms by transgender people — is on its own illegal and unconstitutional, HB 2 in facts wreaks far greater damage by also prohibiting local governments in North Carolina from enacting express anti-discrimination protections based on sexual orientation and gender identity,” the lawsuit says.

House Bill 2, enacted in the course of one day last week when North Carolina Gov. Pat McCrory signed it into law after an emergency session of the state legislature, undoes all pro-LGBT city ordinances in the state, including the recently approved measure in Charlotte, and prohibits transgender from using the public restroom consistent with their gender identity in schools and government facilities.

The lawsuit contends House Bill 2 violates principles of equal protection under the U.S. Constitution by violating the right to privacy; violating liberty and autonomy in the right to refuse medical treatment; and discriminating against transgender people because of sex and for pre-empting local ordinances of the basis of sexual orientation and gender identity.

Additionally, the lawsuit contends the state law contravenes Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of gender in schools.

“H.B. 2 endangers the safety, privacy, security, and well-being of transgender individuals,” the lawsuit says. “For example, if a transgender woman were to use the men’s restroom, she likely would be harassed and might be assaulted by men who believed that she should not be in the men’s restroom. Similarly, if a transgender man were to use the women’s restroom, he likely would be harassed and might be assaulted by women who believe he should not be in the women’s restroom.”

The lawsuit calls for declarations that transgender people and gay, lesbian and bisexual people are quasi-suspect classes that warrant heightened scrutiny in the courts, which would make courts more likely to strike down future laws targeting those communities as unconstitutional.

The plaintiffs in the lawsuit are Joaquín Carcaño, who’s transgender and an employee of the University of North Carolina, Chapel Hill; Payton McGarry, who’s transgender and a student at University of North Carolina, Greensboro; and Angela Gilmore, a lesbian and North Carolina Central University law professor. Organizational plaintiffs are the American Civil Liberties Union of North Carolina and Equality North Carolina.

“HB 2 is hurtful and demeaning,” Carcaño said in a statement. “I just want to go to work and live my life. This law puts me in the terrible position of either going into the women’s room where I clearly don’t belong or breaking the law. But this is about more than bathrooms, this is about my job, my community, and my ability to get safely through my day and be productive like everyone else in North Carolina.”

The lawsuit explains Carcaño and McGarry have been using male public restrooms at the campus of their schools, but as a result of House Bill 2, Carcaño will now be required to venture off-campus to use a restroom and the situation for McGarry will be cumbersome.

“If Mr. McGarry could not use the men’s restroom at UNC-Greensboro, he would have to search for single-user restrooms outside of the buildings where his classes are held every time he had to use the restroom,” the lawsuit says. “This would disrupt his ability to attend class and would interfere with his educational opportunities. Expelling him from the multiple occupancy restrooms and locker rooms available to all other male students is stigmatizing and marks him as different and lesser than other men.”

Gilmore is in a same-sex relationship and lives in Durham, but has visited Charlotte and fears without the city ordinance he and his partner “will now be exposed to discrimination based on their sexual orientation” if they venture into that jurisdiction.

The named defendants in the lawsuit are McCrory, North Carolina Attorney Roy Cooper, the University of North Carolina, the Board of Governors of the University of North Carolina; and W. Louis Bissette, Jr., chair of the board of governors of the University of North Carolina.

The Washington Blade has placed a request for comment on the lawsuit with McCrory, who has previously defended the measure against critics as a means to protect privacy.

It remains to be seen whether Cooper, a Democrat seeking election as governor in the state, will defend HB 2 in court. Cooper has previously spoken out against HB 2 as a discriminatory measure.

The groups who filed the lawsuit on behalf of plaintiffs are the American Civil Liberties Union, ACLU of North Carolina, Lambda Legal and Equality North Carolina.

Chris Brook, legal director of the ACLU of North Carolina, said his organization is “challenging this extreme and discriminatory measure” to ensure everyone in the state is protected under the law.

“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,” Brook said.

Tara Borelli, senior attorney with Lambda Legal, called HB 2 a “targeted and unprecedented attack” against LGBT people in North Carolina.

“Clearly HB 2 is unconstitutional 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,” Borelli said. “North Carolina legislators cannot strip equality out of the Constitution and the law.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

5 Comments
  • As the late, great Julian Bond reminded a HRC dinner…
    EDUCATION, LEGISLATION and LITIGATION were the three methods uses to achieve African American civil rights successes.

    But resistance through boycotts and civil disobedience can work well, too… as Rosa Parks and Montgomery reminds us.

    Just the threat of boycotts caused Georgia’s governor to stop and think more carefully.

    https://www.washingtonblade.com/2016/03/28/georgia-governor-vetoes-religious-freedom-bill/
    .

  • HB2 is a close cousin of Colorado’s vile Amendment 2 from 24 years ago. That didn’t pass Constitutional muster, according to SCOTUS (Romer V. Evans), and neither will this.

    It represents nothing more than a wholly unnecessary exercise in the state-sponsored expression of bigotry.

    • Let’s hope. If I recall, Ohio had something similar and that wasn’t automatically struck down with the Romer v. Evans ruling based on the some BS that it only applied to Colorado. In fact, if I recall correctly that was Scalia’s ruling.

  • I wonder if they will strike down the gay parts and leave intact the minimum wage restrictions and whatever else they threw in there.

  • You should also reference the court decision by Romer V. Evans (1996) which struck down a law in Colorado that would have prevented the legislature from enacting laws that protect homosexuals and bisexual people not satisfy the US constitution’s equal protection clause. That establishes a precedent for striking down something like this.

    It’s good you cite the title IX on gender discrimination here so you get hopefully a binding court ruling that transgender people are covered because social conservatives have on their agenda to prevent federal agencies from interpreting it that way should they gain power.

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