Courts offer the best path for LGBT rights

Gay rights and civil rights advocates have blasted Gov. Roy Cooper for a repeal of HB2 they say does not go far enough to protect gay and transgender people from discrimination, but a federal court ruling last week indicates that the governor took the right path.

Cooper’s signing of House Bill 142 repealed HB2 and eliminated the rule that people use the bathrooms in government buildings that match the sex on their birth certificate. But it also imposed a moratorium until Dec. 1, 2020 on local governments passing anti-discrimination laws, including those that would explicitly protect against discrimination based on sexual orientation or gender identity.

Cooper thought getting rid of the offensive language of HB2 and ending boycotts of the state was worth the compromise of accepting the moratorium. There was no hope of getting anything stronger through the Republican-led legislature. (And, overlooked amid the outrage, was that the moratorium also prevents conservative-led towns from adopting their own “bathroom laws” in response to the HB2 repeal.)

The compromise was far from ideal, but Cooper expects that future election results and court decisions will grant protections against discrimination based on sexual orientation and gender identity just as the federal courts upended North Carolina’s ban on same-sex marriage. That expectation was fulfilled last week when the 7th Circuit Court of Appeals in Chicago ruled 8-3 that workplace discrimination on the basis of sexual orientation does violate Title VII of the Civil Rights Act of 1964. Significantly, the majority includes five Republican-appointed judges.

The judges who dissented said the decision represents a court “updating” a law and that is something only a legislative body should do. But in matters of civil rights – usually involving the rights of minority groups – the federal courts have often moved ahead of legislatures since rights that are inherent in the U.S. Constitution can’t be legally denied by a legislative vote. The question is whether gay and transgender people have a right to be protected from discrimination. The 7th Circuit ruling says gay people, at least, do have such a right.

Richard Posner, a judge appointed by Ronald Reagan, concurred in the opinion but, as reported by the Indianapolis Star, wrote about how the lawmakers who passed Title VII may not have had sexual orientation in mind when it came to sex discrimination in the workplace. Posner wrote “that the concept of sex discrimination has since broadened as society’s definitions of gender and sex have also broadened.”

Circuit courts have disagreed on this issue, and the Supreme Court will have to ultimately decide, but last week’s lopsided ruling suggests that the law is quickly evolving to include protections for gay people. Holding out until the General Assembly allows town and cities to immediately grant such rights is holding out for what is – under the current legislature – unattainable.

Correction: An earlier version of this editorial incorrectly described the moratorium on local anti-discrimination laws imposed by HB 142. It is until Dec. 1, 2020, not 20 months.

This story was originally published April 9, 2017 at 4:29 PM with the headline "Courts offer the best path for LGBT rights."