It seems rather clear from all of the surrounding circumstances that the NC law did in fact target a discrete group, and did so for the purpose of abrogating specific local anti-discrimination laws protecting members of those groups. Courts will not have to pretend otherwise.
On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Unlike Romer, NC law does not specifically target any discrete group, unless it targets by omission. If so, then it still has not targeted a omitted single group but rather several omitted groups. Also, under NC law, any nondiscrimination law passed by the state legislature will necessarily bind local governments from adopting laws inconsistent with it. So we’re back to the question of whether the Constitution requires that NC include SOGI in any nondiscrimination law it passes. If so, what other protected classes also must be included? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 2:59 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom I don’t have time to respond to all of this, but on the latter few paragraphs: there is a difference between a state (1) not providing statewide protection for members of a particular group, and (2) affirmatively preventing all local governments from protecting members of that group. The latter is what’s going on here, and it’s also what the Supreme Court held was unconstitutional in Romer v. Evans. On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: A couple of points on background . . . North Carolina is a “Dillon Rule” state where municipalities are limited to exercising those powers that are “expressly conferred” or “necessarily implied” from enabling legislation passed by the state legislature. The NC state legislature has never delegated to cities generally, or to Charlotte specifically, express authority to adopt public accommodations ordinances. Local ordinances must be in harmony with state law; whenever the two conflict, local law must give way. Because of NC Constitution’s prohibition on local acts that regulate labor or trade (Art. II, §24(1)(j), the NC legislature could not, as some have suggested, pass a law that simply overruled the Charlotte ordinance. The NC Supreme Court in 2003 held that the state legislature had acted unconstitutionally by authorizing a single county to enact and enforce a local ordinance prohibiting discrimination in employment. The court said that if the legislature was going to address employment discrimination by means of a state statute, it had to adopt a statewide law applicable to employers regardless of where they are located in the state. Interestingly, the court emphasized that authorizing such local statutes “could lead to a balkanization of the state’s employment discrimination laws, creating a patchwork of standards varying from county to county. The end result would be the ‘conglomeration of innumerable discordant communities’ that Article II, Section 24 was enacted to avoid.” Now to HB2 . . . The argument of those who criticize HB2 seems to come down to this: NC has impermissibly discriminated against and shown animus toward transgender persons because it did not give them the right to use the bathroom of their choice. Why does it necessarily show animus towards transgender persons if the NC legislature decides that it can’t give transgender persons everything they want? Why can’t NC say to transgender persons, “We understand your privacy needs and HB2 will specifically permit accommodations for transgender persons in public schools and other government facilities in the form of single-occupancy or controlled-use bathrooms. But we also have to balance your privacy needs with the privacy and safety concerns of non-transgendered persons. Given those concerns, we will require that multi-occupancy bathrooms, locker rooms, etc. be differentiated on the basis of biological sex.”? Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker rooms are a zero-sum game—whatever is gained by one side is lost by the other. The two transgendered plaintiffs in the lawsuit allege that using the bathroom other than the one of their choice will make them feel distressed and uncomfortable. While transgendered persons have legitimate privacy concerns, so do non-transgendered persons, who will be required to disrobe, shower, and perform personal bodily functions in the presence of those with intimate body parts different than their own. The reason we have separate sex-specific bathrooms and locker rooms is because men and women have different bodies and we want to protect privacy related to our bodies, not our gender identity. Transgender persons—at least the two plaintiffs in the NC lawsuit—do not want to use single-occupancy bathrooms because they say it stigmatizes them. A lot of people prefer single-occupancy bathrooms because it better suits their privacy preferences, but don’t feel stigmatized. So, back to the question: Why is NC constitutionally required to balance its citizens’ privacy interests in favor of permitting transgender persons access to the bathroom or locker room of their choice? Must it give transgender persons everything they ask for to avoid showing animus? Regarding the new NC public accommodation law, the argument is similar: NC has discriminated against and shown animus toward gays, lesbians, and transgender persons because it did not include them as protected classes in HB2. Federal public accommodations law protects only against discrimination on the basis of race, color, religion, and national origin. Federal laws that forbid discrimination in employment and education do not specify sexual orientation, gender identity, and gender expression as protected classes. Public accommodation laws don’t include sexual orientation and gender identity in 32 states and employment discrimination laws in 30 states do not cover sexual orientation and gender identity. Why can’t NC pass a public accommodations law limited to race, religion, color, national origin, and biological sex? Does the Constitution require the inclusion of sexual orientation and gender identity in all discrimination laws? Are existing federal and state laws that do not include sexual orientation and gender identity facially unconstitutional? What other classes does the Constitution require to be included? Disability, age, poverty, pregnancy, veteran status, familial status? Does the NC legislature necessarily show animus toward every class not included? Greg Wallace Campbell University School of Law ________________________________
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