Last spring the Supreme Court heard arguments in the landmark Obergefell v. Hodges case and ultimately ruled that same-sex couples have the fundamental right to marry. This spring, high-profile lawsuits have pitted the federal government against various states over transgender people’s bathroom access. According to Fordham Law Professor Elizabeth Cooper, these legal battles reveal a kind of duality: the prevalence of still existing legislated LGBT discrimination and the opening for future civil rights advances.
In early May, the Department of Justice and state of North Carolina sued each other days after the DOJ alleged that the state’s controversial House Bill 2 “bathroom bill” violated the Civil Rights Act of 1964 and Title IX. The Justice Department threatened to withhold billions in federal education spending unless the state repealed the bill—a demand the state refused. Three weeks later, on May 25, eleven states and state officials filed suit against the Obama administration in the U.S. District Court for the Northern District of Texas over federal guidance that transgender students be allowed to use bathrooms matching their gender identity.
In 2016, more than 100 anti-LGBT legislative bills have been introduced though only a handful have been passed into law, according to the American Civil Liberties Union. North Carolina is the lone state to pass a bill preempting local governments, including its largest city, Charlotte, from passing nondiscrimination legislation that is greater than the protections offered at the state level. Meanwhile, Mississippi’s HB 1523 allows businesses to refuse service to gay couples and employers to fire transgender employees for being transgender.
The timing of these anti-LGBT legislative initiatives is not surprising, Cooper said. Obergefell recognized millions of Americans held equal marriage rights under the law but it also inspired “anti-gay anxiety” among a minority of the nation’s population that is “being expressed through other attempts at legislating discrimination,” the professor explained.
“I am hopeful that the attempts to create or reinforce second-class citizenship for LGBT people ultimately will yield to increased acceptance and stronger laws protecting their rights,” Cooper said. “But it’s a shame that we have to continue to litigate basic human dignity.”
North Carolina’s HB2 restricts bathroom access for transgender people to the one corresponding with the biological sex listed on their birth certificate. The bill’s proponents describe it as a preventative public safety measure. However, no statistical evidence exists of violence perpetrated by transgender people against women in bathrooms, according to the ACLU and various other human rights organizations.
In contrast, U.S. Attorney General Loretta Lynch, herself a North Carolina native, compared the law to the racist Jim Crow laws that existed for African Americans living in the South until the passing of the Voting Rights Act of 1965.
Once Lynch determined HB2 violated federal law, she had two options to encourage compliance: bring forth a lawsuit and/or threaten to cut relevant funding streams, Cooper explained. The IRS famously took the latter step against Bob Jones University, a private Christian school in South Carolina, in the 1970s, leading to the Supreme Court’s ruling in Bob Jones University vs. United States in 1983 that a college was not entitled to tax-exempt status if it banned interracial marriage or dating.
“The hope was that the threat of defunding would encourage the state to more equitably protect all of its citizens,” Cooper said of the DOJ’s suit against North Carolina. Roughly seventy percent of transgender people have reported being assaulted, harassed, or denied entrance while trying to use a restroom, according to a 2013 report by UCLA Law School’s Williams Institute.
“To me, one of the biggest takeaways from all this is a growing understanding among the general public that transgender people deserve the same basic rights, such as being able to access a bathroom safely, as everyone else,” Cooper added.
The corporate response to HB2 and other anti-LGBT legislation has been swift.
HB2 cost North Carolina millions this spring when PayPal reversed plans to open an operations center in Charlotte that would have employed 400 people. The NBA, which is holding its 2017 All-Star Game in Charlotte, has expressed concern over the bill, and numerous musicians, including Bruce Springsteen, are boycotting North Carolina until HB2 is repealed, according to the Charlotte Observer.
“The laws in North Carolina and Mississippi are anathema to the principles of inclusion that many corporations have come to endorse,” Cooper said, noting today’s corporations realize that, to retain top employees and maintain a broad customer base, they cannot be seen as endorsing discrimination.
A significant portion of the anti-LGBT bills introduced in 2016 stem from so-called religious exemptions such as the Religious Freedom Restoration Act and Pastor Protection Act, according to the ACLU. Only one such exemption bill out of more than 40 introduced has passed thus far (Florida HB 43/SB 110). Mississippi’s HB 1523, known as the Religious Liberty Accommodations Act, also allows business owners to discriminate against potential customers on religious grounds.
As a person of faith, Cooper said she is “deeply troubled” at how religion is being used as “a vehicle to discriminate against others.” The First Amendment is not absolute and thus does not entitle people to break the law on account of religious beliefs, she noted.
“Religious freedom does not incorporate the right for a public accommodation to discriminate,” Cooper said. “A bakery is a bakery is a bakery. A florist is a florist is a florist. If it’s open to the public everyone from the public has the right to obtain services.”
Still, the discriminatory laws in North Carolina and Mississippi highlight the legal challenges many in the LGBT community continue to face in America. Twenty-eight states have no laws banning discrimination based on sexual orientation or gender identity and expression in employment, housing, and public accommodations.
“It’s jarring that, in so many jurisdictions in the United States, gay people can be fired from their job because they’re gay,” Cooper said. “But I am confident in time—hopefully sooner rather than later—gay people will be protected from discrimination throughout the country.”