North Carolina to Limit Bathroom Use by Birth Gender

[Thorolfr]

The Colorado law was written explicitly about LGBTQXYZ, the NC law omits saying anything about them at all. In HB2, the law lists those classes that are protected; it does not identify any particular group specifically as not protected. LGBetc cannot charge they were singled out since there is nothing in the law that refers to them. The Colorado law was invalidated because of what it did say; it will have to be a different approach to invalidate the NC law because of what it didn’t say.

Ender

It doesn’t matter that the new law omits saying anything specifically about LGBT people because it is obvious that the intent of the law is to prevent local governments from passing laws to protect LGBT people:

The law’s attack on gays and bisexuals, however, is slightly subtler. Instead of naming sexual minorities, the law bars municipalities from passing nondiscrimination laws that extend beyond the statewide standards—which, of course, do not forbid sexual orientation (or gender identity) discrimination. So, in practice, no city can legally protect its LGBT residents.

This artful workaround cannot save the rest of the bill. Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)

And even if a court were somehow not convinced that HB 2 runs afoul of Arlington Heights, another, even more venerable precedent controls: 1967’s Reitman v. Mulkey, whose continued vitality the Supreme Court recently reaffirmed. In Mulkey, the court confronted a purportedly neutral California law that prohibited any legislative interference with property owners’ right to refuse to sell or rent their property for any reason. The court rightly noted that even though the law did not explicitly mention discrimination, its “immediate design and intent” was to establish a “right to privately discriminate” in a manner that directly harmed minorities. Thus, the law’s efforts to leave discrimination as its subtext could not save it from crashing into the shoals of the Equal Protection Clause.

slate.com/blogs/outward/2016/03/24/north_carolina_s_anti_lgbtq_law_is_unconstitutional.html

 

[exnihilo]

It doesn’t matter that the new law omits saying anything specifically about LGBT people because it is obvious that the intent of the law is to prevent local governments from passing laws to protect LGBT people:

First, LGBT people have all the protections of the law anyone else does. They don’t have a special status under the law. Why should anyone have a special status anyway? Shouldn’t the law treat everyone equally?

Second, the intent is obviously first and foremost to counteract a law that allowed anyone to use any sex segregated bathrooms. The law just as much prevents local governments from passing laws to grant special status to other groups.

Third, if you value political freedom so much would you advocate allowing the Southern states seceding? The states as sovereign entities should have that right under law. But cities are creations of the state. There very existence comes from the state. So they have no more authority then the state allows. I ask this only because political freedom and democracy is often valued only in as much as the results are what we individually like.

 

[Thorolfr]

First, LGBT people have all the protections of the law anyone else does. They don’t have a special status under the law. Why should anyone have a special status anyway? Shouldn’t the law treat everyone equally?

The law specifically omits protections based on sexual orientation or gender identity. As a result, someone could be fired from their job because they gay or a landlord could refuse to rent to someone because they are gay. Without any protection, such people would have no recourse under the law. Although it’s unlikely that they would need this protection, such laws would also protect straight people from being discriminated against because they are straight (maybe their landlord is gay and doesn’t like to rent to straight people). So such a law would protect everyone from discrimination as a result of their sexual orientation.

 

[exnihilo]

The law specifically omits protections based on sexual orientation or gender identity. As a result, someone could be fired from their job because they gay or a landlord could refuse to rent to someone because they are gay. Without any protection, such people would have no recourse under the law. Although it’s unlikely that they would need this protection, such laws would also protect straight people from being discriminated against because they are straight (maybe their landlord is gay and doesn’t like to rent to straight people). So such a law would protect everyone from discrimination as a result of their sexual orientation.

I don’t think anyone needs such protection. I might not get hired because I went to a particular university. That would be unjust. That doesn’t mean there should be a law against it. Besides I think if anything homosexuals are already protected by society which favors them. People who think homosexuality is wrong are in more need.

Why is it unlikely a non homosexual would not face discrimination from homosexuals? In my experience all the protected classes are just as discriminatory if not more so.

 

[BlueEyedLady]

I don’t think anyone needs such protection. I might not get hired because I went to a particular university. That would be unjust. That doesn’t mean there should be a law against it. Besides I think if anything homosexuals are already protected by society which favors them. People who think homosexuality is wrong are in more need.

Why is it unlikely a non homosexual would not face discrimination from homosexuals? In my experience all the protected classes are just as discriminatory if not more so.

I don’t think you understand what a protected class is. Race is a protected class, black people are not. Sexual orientation should be a protected class, gay people should not. Religion is a protected class, Muslim/Christian/atheist is not.

The first time hate crime laws were challenged before the SCOTUS, it was a case where a white boy was murdered by a group of black guys for being white. The law was upheld. Being white wasn’t a protected class, but again, race is.

 

[exnihilo]

I don’t think you understand what a protected class is. Race is a protected class, black people are not. Sexual orientation should be a protected class, gay people should not. Religion is a protected class, Muslim/Christian/atheist is not.

The first time hate crime laws were challenged before the SCOTUS, it was a case where a white boy was murdered by a group of black guys for being white. The law was upheld. Being white wasn’t a protected class, but again, race is.

No, I understand what I protected class is. I also understand the law is applied unequally. I also know the creation of the classes can be said to be for the benefit of specific groups.

 

[edwest2]

LGBT people did not do what they wanted in the past without the fear of being persecuted, arrested, blackmailed, etc. You should try reading the book by David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (University Of Chicago Press, 2006):

amazon.com/Lavender-Scare-Persecution-Lesbians-Government/dp/0226401901/ref=sr_1_1?ie=UTF8&qid=1458960384&sr=8-1&keywords=lavender+scare

The early Cold War is of great personal interest to me. Psychiatrists at the time and until 1973, considered homosexuality a disorder. The government, based on that, was rightly concerned that sensitive information might pass hands to a foreign agent who had blackmailed the person in question: give him the documents or he will reveal that the person was a homosexual. The United States military excluded LGBT persons from duty. It was not done for no reason.

Senator McCarthy was right. Communist infiltration in the US government was significant. See: Blacklisted by History by M. Stanton Evans. However, due to interference by the National Security Agency, few prosecutions occurred because if certain individuals were identified as Communist agents and a prosecution was attempted, it would tell the Soviets that we had broken their secret codes. “For example, when in 1956 the FBI proposed prosecuting former White House aide Lauchlin Currie for espionage based on information developed from Venona, NSA’s director, Lieutenant General Ralph Canine, strongly objected, telling the Justice Department that anything that might reveal NSA’s success in breaking Russian codes would be ‘highly inadvisable.’” See: The Secret Sentry by Matthew M. Aid.

There was no scare. Both books should be read together. The FBI, which had a secret intelligence branch, had warned the government before Senator McCarthy became involved.

Ed

 

[Thorolfr]

The early Cold War is of great personal interest to me. Psychiatrists at the time and until 1973, considered homosexuality a disorder. The government, based on that, was rightly concerned that sensitive information might pass hands to a foreign agent who had blackmailed the person in question: give him the documents or he will reveal that the person was a homosexual. The United States military excluded LGBT persons from duty. It was not done for no reason.

Senator McCarthy was right. Communist infiltration in the US government was significant. See: Blacklisted by History by M. Stanton Evans. However, due to interference by the National Security Agency, few prosecutions occurred because if certain individuals were identified as Communist agents and a prosecution was attempted, it would tell the Soviets that we had broken their secret codes. “For example, when in 1956 the FBI proposed prosecuting former White House aide Lauchlin Currie for espionage based on information developed from Venona, NSA’s director, Lieutenant General Ralph Canine, strongly objected, telling the Justice Department that anything that might reveal NSA’s success in breaking Russian codes would be ‘highly inadvisable.’” See: The Secret Sentry by Matthew M. Aid.

There was no scare. Both books should be read together. The FBI, which had a secret intelligence branch, had warned the government before Senator McCarthy became involved.

Ed

But if being gay was not considered to be a disorder and was not something that anyone would be likely to be blackmailed for, then the supposed threat of employing gay people in the government would not have existed. That’s why, thankfully, homosexuality is no longer considered to be a disorder and therefore this problem no longer exists.

 

[Ender]

The law specifically omits protections based on sexual orientation or gender identity.

This is an interesting construction: how can something that has been omitted be said to be specific? Is it not equally true to assert that the law specifically omits protections based on left-handedness?

As a result, someone could be fired from their job because they gay or a landlord could refuse to rent to someone because they are gay. Without any protection, such people would have no recourse under the law.

Really? I’m would think there are specific conditions (those would be the ones actually written down) that identify what constitutes a just cause for firing someone. That would give them recourse under the law…which would be the same recourse everyone else has.

Although it’s unlikely that they would need this protection, such laws would also protect straight people from being discriminated against because they are straight (maybe their landlord is gay and doesn’t like to rent to straight people). So such a law would protect everyone from discrimination as a result of their sexual orientation.

The florist in Washington being sued out of existence might have a different view of the “protections” such laws provide. What the NC law actually provides is protection for people like her.

Ender

 

[Thorolfr]

This is an interesting construction: how can something that has been omitted be said to be specific? Is it not equally true to assert that the law specifically omits protections based on left-handedness?

But the stated purpose of the new law was to overturn Charlotte’s LGBT nondiscrimination ordinance. Now if it had been passed to override a law protecting left-handed people, you’re interpretation might make sense, but that’s not the case.

 

[edwest2]

But if being gay was not considered to be a disorder and was not something that anyone would be likely to be blackmailed for, then the supposed threat of employing gay people in the government would not have existed. That’s why, thankfully, homosexuality is no longer considered to be a disorder and therefore this problem no longer exists.

It was removed as a disorder due to the actions of radical gay activists and closeted gays in the APA. This was a political decision made under duress in 1973 and not based on years of scientific research.

amazon.com/Homosexuality-American-Psychiatry-Politics-Diagnosis/dp/0691028370

Similar lobbying occurred to reclassify transgendered persons in 2013.

Ed

 

[Thorolfr]

This was a political decision made under duress in 1973 and not based on years of scientific research.

What years of scientific research proving that homosexuality is a disorder are you talking about? Can you cite some of this valuable research?

 

[edwest2]

ajp.psychiatryonline.org/doi/abs/10.1176/ajp.138.2.210

Ed

 

[sallybutler]

Maybe this is simplistic of me, but if someone is dressed like a woman, looks female, and sits down to pee, they can use the stall next to me. Maybe men don’t know this, but women’s bathrooms don’t have public urination stations. We generally don’t know what someone does inside the bathroom. And to tell the truth, don’t really want to know.

 

[retire_early]

But if being gay was not considered to be a disorder and was not something that anyone would be likely to be blackmailed for, then the supposed threat of employing gay people in the government would not have existed. That’s why, thankfully, homosexuality is no longer considered to be a disorder and therefore this problem no longer exists.

I wonder how many people still consider homosexuality to be a disorder.

Organizations, made up of people, even with medical degrees, can be wrong.

 

[Rhubarb]

I just think it’ll be more disruptive for women in a ladies’ room when a bearded, ball-capped,with masculine jeans and shoes and body hair-ed person goes into the bathroom stall to do their business. Because this transman is required to use the women’s room even though the individual looks like a man in every other respect.

It’s not hard to find examples of such people, but, I spared everyone the images for this post.

 

[JonNC]

But the new law is not just about what restrooms Transgender people can use. It also forbids all local laws intended to protect Lesbian, Gay, Bisexual and Transgender people from discrimination.

From the Press release I linked:

2. Does this bill take away existing protections for individuals in North Carolina?

Answer: No. In fact, for the first time in state history, this law establishes a statewide anti-discrimination policy in North Carolina which is tougher than the federal government’s. This also means that the law in North Carolina is not different when you go city to city.

5. Does this law prohibit towns, cities or counties in North Carolina from setting their own nondiscrimination policies in employment that go beyond state law?

Answer: No. Town, cities and counties in North Carolina are still allowed to set stricter non-discrimination policies for their own employees if they choose.

Jon

 

[JonNC]

But the stated purpose of the new law was to overturn Charlotte’s LGBT nondiscrimination ordinance. Now if it had been passed to override a law protecting left-handed people, you’re interpretation might make sense, but that’s not the case.

You’re assuming the City of Charlotte actually had authority to pass such an ordinance. It did not.
And why are there not laws protecting left-handers?

Jon

 

[Thorolfr]

You’re assuming the City of Charlotte actually had authority to pass such an ordinance. It did not.
And why are there not laws protecting left-handers?

Jon

Why didn’t they have that authority? There was nothing saying that all city ordinances had to first be approved by the state legislature and all across the US, cities and towns pass local ordinances. Many cities and towns across the US have local ordinances that protect LGBT people, set minimum wage standards that are higher than what is mandated by federal law. etc.

 

[JonNC]

Why didn’t they have that authority? There was nothing saying that all city ordinances had to first be approved by the state legislature and all across the US, cities and towns pass local ordinances. Many cities and towns across the US have local ordinances that protect LGBT people, set minimum wage standards that are higher than what is mandated by federal law. etc.

The link explains the NC state constitutional relationship of the cities and the state. It doesn’t matter what other states do.

Jon