Though the Fourth Circuit Court of Appeals held last week that a transgender student has a statutory right to use the bathroom associated with the student’s gender identity, that ruling was based exclusively on a federal statute known as Title IX and has no bearing on the constitutional claims in a pending ACLU lawsuit against North Carolina’s House Bill 2.
The ACLU alleges that the nondiscrimination provisions in HB2 violate a lesbian couple’s equal protection rights by precluding them from pursuing a discrimination claim against a Charlotte fertility clinic. Some have suggested that, under the U.S. Supreme Court’s 1996 decision in Romer v. Evans, the federal courts will have little trouble striking down HB2’s nondiscrimination provisions on equal protection grounds. When analyzed carefully, though, these provisions are apt to be upheld.
In Romer, the Supreme Court acknowledged that most laws classify in one way or another “with resulting disadvantage to various groups or persons.” Consequently, the fact that HB2 classifies – or “discriminates” as critics contend – is not enough to invalidate the law. In fact, HB2 affirmatively bars discrimination based on race, religion, color, national origin and biological sex. In limiting its scope to these characteristics, the legislation omits numerous others, including sexual orientation, gender identity, military service, parenthood and political affiliation. If deciding not to favor a particular group constitutes discrimination, then HB2 discriminates. But so do most other laws, including the Charlotte ordinance that gave rise to HB2.
Those challenging HB2 liken it to the Colorado constitutional amendment at issue in Romer, which the Supreme Court found to sanction an invidious form of discrimination by targeting those in the LGBT community. This claim, however, falls short of an equal protection violation for at least two reasons.
▪ First, HB2’s nondiscrimination provisions do not discriminate against any particular group. Unlike the amendment in Romer, these provisions do not impose unique disadvantages on lesbian, gay, bisexual and transgender individuals or anyone else. They simply do not extend special protections to a wide range of groups, the majority of which are not protected classes under the court’s equal protection jurisprudence.
In declining to include all possible classes of people, HB2 is similar to lots of laws, including the Charlotte ordinance. Some have characterized Charlotte’s ordinance as providing equal rights under the law to all of Charlotte’s residents. That’s just not true. Although Charlotte included classifications beyond those listed in HB2, Charlotte omitted and HB2’s critics would say “discriminated” against individuals based on such things as military service, parenthood and political affiliation. Yet if all classes of people must receive special protection under state laws, then many laws will be subject to constitutional challenge. But as Romer makes clear, the Constitution recognizes the “practical necessity” of classifying for “one purpose or another.”
▪ Second, because HB2 neither targets a suspect class nor burdens a fundamental right, it is constitutional “so long as it bears a rational relation to some legitimate end.” That is, in the words of Romer, a law will be upheld “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Whether one likes or dislikes HB2, it satisfies this deferential test as a measure to ensure uniformity across the state with regard to North Carolina’s public accommodations and employment laws.
Unlike HB2, the amendment failed this test because it excluded “homosexual, lesbian or bisexual orientation” protection across the board, going so far as to prohibit protection from discrimination at “every level” of government. The effect was to preserve access to state and local governments for those who wished to secure protection based on all classifications except homosexual, lesbian and bisexual orientation. Protection for this lone disfavored group could be secured only through further constitutional amendment.
HB2’s nondiscrimination provisions do not mandate such differential treatment because they neither identify a single group by a single trait nor impose burdens on any of the groups identified. Although the law limits the ability of local governments to grant special protection, it permits all North Carolinians to seek change through the state legislative process.
That HB2 is constitutional does not resolve the ongoing policy debates. Through constructive discussion, voters and their elected representatives will need to decide how to craft anti-discrimination laws to balance the rights of religious believers with the rights of others. Achieving a reasonable balance will require thoughtful consideration, not threats and rhetorical flourishes that serve only to divide us.
Thomas J. Molony is an associate professor of law and Scott W. Gaylord is a professor of law at Elon University School of Law.