I have been a civil rights lawyer for almost 40 years. I once believed that “civil rights” meant the struggle to end racial discrimination against African-Americans, and I continue to believe that unfinished business holds special resonance for our nation.
There was a view among some black people that “civil rights,” when applied to the anti-discrimination struggles of individuals and groups other than African-Americans, was an unwelcome appropriation of ideas and principles that held exclusive significance for them. “Find your own terminology; don’t steal ours,” “gender inequality is important, but we didn’t fight a civil war over it” or “The battle against discriminatory treatment of gays and lesbians is not comparable to the fight against racial discrimination.”
It was as if there was a limited amount of justice available in the universe and a zero-sum game in which African-Americans lost when the struggles of others sought shelter and legitimacy under the “civil rights” umbrella.
In time I grew to understand that if one claims to oppose discrimination on principled grounds, that opposition cannot solely turn on the fact that one is part of the group discriminated against. I came to understand that discrimination against LGBT people is wrong.
I believe subordination on the basis of who and what people are, whom they love, whether or how they worship, whether they are differentially abled, or any other unchosen characteristic, is wrong. Most Americans agree. In recent years the Supreme Court, even with five conservative justices, has ruled against discriminatory laws and practices on the basis of sexual orientation.
North Carolina’s House Bill 2, which strips local government of the ability to pass ordinances intended to protect LGBT individuals from discrimination, is a huge step backward. Supporters of the new law claim it was necessary to prevent dangers, including rape and murder, to women and children posed by transgendered persons using restrooms other than those designated for their sexual identity at the time of their birth.
In spite of the fact that there is now significant experience with transgendered persons in jurisdictions around the country using restrooms matching their self-identified gender without the parade of horribles cited by HB2 proponents, an overwhelmingly partisan legislative majority adopted a hastily drafted and ill-considered bill that went well beyond transgendered use of restrooms. The law overrode the city of Charlotte’s decision – through its locally elected representatives, to protect transgendered people from discrimination – and kept local governments throughout the state from enacting anti-discrimination laws. Cities and towns are also stripped of the power to enact minimum-wage laws.
There is a familiar pattern evidenced in the actions of right-wing conservatives in various contexts these days. The facts don’t get in the way. Point to the danger of rape and murder of women and children by transgendered persons without any supporting evidence, in order to justify discrimination against LGBT persons. Never mind that HB2 proponents cite no facts in support of their scare campaign. They can rely on some people’s most deeply ingrained fears and biases against those with different lives and experiences.
Some political pundits believe the legislature’s animus underlying HB2 is not so much hostility toward LGBT persons, but the creation of a social issue that will motivate North Carolina conservatives to vote in an election in which, come November, jaundiced by developments in the presidential campaigns, many may otherwise stay home. Whether the politics of HB2 are so cynical as to violate basic principles of fairness and equal protection of the laws, is beyond me.
Whatever the motivations underlying HB2, it is a law that threatens to drag North Carolina even further backward. It is morally and legally wrong. That may not be enough to move the legislature to reverse course. However, corporations, banks, educational institutions, employers, investors and the federal government are speaking in opposition to HB2.
They are delivering the message learned from the civil rights struggles on behalf of African-Americans that made North Carolina attractive to business development: If, as a state, we do not get fairness and equality right, we won’t get business investment right.
As for me, there was a time when I would have watched from the sidelines discrimination against LGBT people and thought, “that is not my battle.” I now know better. This kind of discrimination shames our state and diminishes us all.
Theodore M. Shaw is the Julius L. Chambers Distinguished Professor of Law and director of the Center for Civil Rights at UNC Law School.