Yesterday was a long day, legally speaking. First, the Supreme Court heard oral arguments in Zubick v. Burwell, which argues that it substantially burdens the religious beliefs of corporations to opt-out (by signing a form) of providing contraceptive coverage for their female employees, as mandated by the Affordable Care Act. The argument is absurd on its face, because it relies on the premise that it is a “substantial burden” of religious freedom to announce that you are exercising your religious freedom by refusing to do something that everybody else has to. But nevermind; according to everything I’ve read or heard about the session, it looks like the Court is heading for its first 4-4. Sorry, women in the states covered by the 8th Circuit! (UPDATE: this is somewhat oversimplified: the argument is that it makes the religious organizations "complicit" in immoral behavior. This is subject, however, to an obvious reductio: presumably these women draw a salary, and they can use that money to fund their contraception and any form of sexual activity they desire. Men of course also draw salaries, and there seems to be no worry about their sexual activities. One question is whether less intrusive means are available to achieve the same ends. See here and here).
Here in North Carolina, we began a special legislative to put a stop to a grave public health threat: allowing trans* individuals to use the restroom of the gender with which they identify. Why now? Because Charlotte passed a non-discrimination ordinance a few weeks ago allowing just that. So there had to be a special legislative session before April 1 (when the ordinance would have become effective), because kids. Or something. I can't make sense of the law except as a display of trans* phobia. First, something like 200 municipalities have adopted such rules, and there have been zero problems. So we’re solving a problem for which there is not a scintilla of non-speculative evidence that it actually exists. That suggests that claims of state interest are wildly overblown. The law is being used purely as an expressive device, even though it is about to make life more difficult for real people. Even if there’s a state interest here, I don’t understand how the statute does anything meaningful to advance that interest: predators would avoid public restrooms that are highly trafficked, and a law like this wouldn’t deter those predators (again, "predator" and "trans*" actually refer to different sets of people!) at less trafficked areas.
But the legislature likes to think big, and the bill does a lot more than restore restroom access: it sets up (for the first time) a list of things on the basis of which you’re not allowed to discriminate in NC. This initially sounds promising; The Raleigh News and Observer reports:
“The bill would create a statewide law that would ban discrimination on the basis of “race, religion, color, national origin or biological sex” at businesses and other “places of public accommodation.” But the law wouldn’t include sexual orientation and gender identity as categories protected from discrimination”
And that's about where it stops sounding so promising: it bans local governments from going further and granting additional protections. In other words, it specifically bans efforts to protect LGBTQ rights. We should pause at "biological sex," which features in the statute, and which the state defines as the one written on your birth certificate. The state points out that you can have that changed (assuming, I guess, you were born here, which a huge percentage of Charlotteans at least were not). But this is an attempt to define trans* right out of existence: Caitlin Jenner was not born a woman, she became one. The entire discussion brings to mind Judith Butler's remarks on "Gender Identity Disorder" and the way the state functions as part of a damaging dialectic of recognition.
In any case, what I haven’t heard said yet is this: it seems to me that this statute is unconstitutional or very close to it on its face, because it violates Romer v. Evans, a 2006 Supreme Court case on, well, pretty much this precise topic. Romer, recall, invalidated a Colorado referendum that banned cities from protecting LGBTQ citizens. From the case’s headnote:
"After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."
Justice Kennedy summarizes the problem:
"First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
He also notes that “the inevitable inference [is] that the disadvantage imposed is born of animosity toward the class of persons affected.” I think the animus is pretty clear both in the public comments made by legislators, and the deliberate restriction of efforts to protect LGBTQ rights. No, the statute itself doesn't say the words "you aren't allowed to give gay people equal rights," but that is the effect, and pretty clearly an intended one, since the statute is so broad. They weren't just thinking about restrooms. They were thinking opportunistically.
In short, I don’t see how the North Carolina statute would satisfy federal court review in the face of Kennedy’s argument that such laws fail even rational basis scrutiny. The circumstances here are very, very close to Romer, and a federal court should strike it down immediately.
Time for another 4-4?
UPDATE (3/25/16): I rewrote the second paragraph - the sentences were in the wrong order, and, imho, therefore the argument was too hard to follow. I also added the bit about "biological sex," and the possibility of changing it, because it seems that at least some legislators think they have found in it a way out of the problems with the law.