How likely is North Carolina's Public Facilities Privacy & Security Act to be found constitutional when challenged in court?
This thing[1] contains a severability clause (§ 4), which means that the two not-all-that-closely-related "parts" to the thing need to be evaluated separately.The âbathroom billâ is Part I. Iâll come back to that.Part II is a provision eliminating a private cause of action for discrimination (the Human Rights Act), and also eliminating the ability of municipal governments to pass local anti-discrimination ordinances. The practical effect of this was to nullify ordinances found in a number of cities that afforded protected-class status in housing and employment to gay and trans individuals.Part II looks a lot like the situation in Romer v. Evans, 517 U.S. 620 (1996).[2] In that case, the Supreme Court, via Justice Kennedy, struck down a purported constitutional amendment that would have prohibited local governments in Colorado from establishing local anti-discrimination ordinances. âAmendment 2â in that case read:No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.In considering the case, Justice Kennedy wrote:The Fourteenth Amendmentâs promise that no person shall be denied the equal protection of the laws must co exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271â272 (1979), F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. [312, 319â20] (1993) (slip op., at 6).517 U.S. at 631.The Romer case began in the state courts of Colorado, and Justice Kennedy placed substantial weight on the interpretation of its purpose by the Colorado Supreme Court (which rejected the provision on federal constitutional grounds, which is why the U.S. Supreme Court agreed to hear the state governmentâs appeal):The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation.Evans v. Romer, 854 P.2d 1270, 1284 (Colo. 1993). Ultimately, the United States Supreme Court followed the Colorado Supreme Court in concluding that the provision was enacted out of âanimusâ:A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. â[I]f the constitutional conception of âequal protection of the laws⢠means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.âRomer, supra at 634. Romer was also cited extensively by the Obergefell v. Hodges court last year. ___ U.S. ___ (2022).It does look like some efforts were made to distinguish the legislation here from Coloradoâs âAmendment 2â were made. Conspicuously missing from the legislation is any definition or mention of âorientationâ. I assume that this was probably done to make it more difficult to suggest that the law was enacted out of âanimusâ. And indeed, itâs not an unreasonable contention, by itself, to suggest that "laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State will improve intrastate commerce", H.B. 2, preamble.Since the transparent purpose of the bill was to invalidate these local non-discrimination ordinances, the same result as was desired by the anti-gay politicians in Romer, the only question is whether the assertion that local regulations are inconsistent with a rational purpose of promoting uniformity of state law will be found to be sufficient to overcome its discriminatory effects, which may require the development of a record. Romer was decided on findings of fact made by the Colorado Supreme Court (usually the Supreme Court, when reviewing a case, sits only in appellate jurisdiction). In Perry v. Schwarzenegger (later Hollingsworth v. Perry), Judge Vaughn in the Northern District of California held a trial at which various facts were offered as to the good faith of the legislation (Proposition 8, in that matter). 704 F.Supp.2d 921 (N.D.Calif. 2010)[3] This decision should have significant precedential value with regard to the appropriate procedure to use. However, I think itâs overwhelmingly likely that the Legislatureâs sudden interest in statewide uniformity, coupled with the fact that here, as in Romer, already-existing local ordinances were abruptly invalidated, will cause that part of the bill to be found unconstitutional.I believe Part I is more likely than not to be invalidated, but regrettably I cannot be as optimistic about the âbathroom billâ, since this wanders into uncharted territory with regard to the proper standard of deference (does this get ârational relationshipâ or âintermediate scrutinyâ treatment?). The plaintiffs have attacked Part I with two theoriesâfirst, that with regard to educational institutions specifically, the law is in conflict with Title IX. The federal government has taken the position that accommodations for trans people is required by Title IX. (âNo person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.â[4]). Even federal regulations, if properly enacted, may trump state law under the supremacy clause. The federal government has also expressed that it believes Title IX is applicable (though this only helps students, not users of other public facilities). To the extent that the bill applies to facilities covered under Title IX, the challenge has substantial merit (though the remedy might be to strip North Carolina of federal funds rather than to invalidate the bill).The Fourteenth Amendment challenge, which would render unconstitutional the entire bill, is the hardest part to call. This Act is obviously discriminating against trans people as a class, there is, however, substantial murkiness about how to put that class in the âprotected classâ regime. Typically, legislation making classifications must pass a ârational relationshipâ to the governmentâs interests but this isnât a high burden, and the case law establishing the higher âintermediateâ or âstrictâ scrutiny does not, as yet, include sexual orientation or gender identity as a class. So if the State characterizes the inquiry as to one about a generic classification, it only has to point to a ârational relationship.â Cf. Romer, supra, Heller v. Doe, 509 U.S. 312, 319 (1993). Justice Kennedy, in a line of cases starting with Romer, has said things like âwe insist on knowing the relation between the classification adopted and the object to be attainedâ (Romer, 517 U.S. at 632), and in Windsor and Obergefell, has expressed offense at the notion that gay people are essentially made second-class citizens by this type of legislation. However, he has resisted signing on to the notion of adding new âprotected classesâ such that heightened scrutiny would apply. Gender identity is a relatively new thing in the legal world. While I have little doubt that Justice Kennedy would vote to invalidate Part II of H.B. 2, and I think probably Part I as well, I donât know for sure if he would think it too much of a novelty to invalidate Part I based on the idea that it discriminates against trans people as a class.Another approach is to characterize the bill as plain sex discrimination. The cleanest reading in a typical case (say, a Title VII case where a trans person is suing for being discriminated against) would be to say that the "intermediate scrutiny" test should apply because itâs actually facial sex discrimination. In other words, sexual identity can be no different a type of class from sex itself because by treating a trans woman differently from a cis woman on the theory that the trans woman is âmaleâ is essentially treating men different from women, and that requires intermediate scrutiny, which this bill would not pass. The plaintiffs have cited Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) for the proposition that discriminating against trans people is a form of inappropriate âsex stereotypingâ (granted, Price Waterhouse dealt with Title VII and an equal-employment-opportunity claim so it may not be perfectly on point) and a very recent Fourth Circuit decision, G.G. ex rel Grimm v. Gloucester Co. Sch. Bd., ___ F.3d ___ (19 April 2022. (a Title IX case holding that a Virginia trans boyâs rights were affronted by his school not letting him use identity-appropriate dressing rooms).The problem with taking the âthis is sex discrimination on its faceâ approach in this particular case (in, say, employment, itâs a powerful argument) is that gendered bathrooms are an entrenched tradition in the U.S., and preserving gendered bathrooms as a thing is said by its supporters to meet the plausibly âsubstantialâ goal of protecting other citizens⢠prior expectations of privacy. The court may be leery of a ruling that would be interpreted as abolishing gendered bathrooms entirely, and we might be left begging the question of who is a âwomanâ or a âmanâ.So ironically even though Iâm fully for the proposition that identity be considered a protected class (and the same goes for sexual orientation), the challenge might be more successfully stated as discrimination against trans people as a subclass, because the animus against them is more easily shown, rather than a reflection of general sex discrimination. The plaintiffs are attempting to show that the bill is not rationally related to its stated goal of âprotecting privacyâ, but this might again require findings of fact, and there are many legislative-review cases that will just take âfindingsâ made by the legislature as gospel and punt the issue as a âpoliticalâ one.The original complaint is here: http://media2.newsobserver.com/c.... An amended complaint was filed on 21 April and a motion for preliminary injunction is pending, with the Stateâs response due on 9 June. If I can figure out how to post the plaintiffs⢠brief in support of the preliminary injunction (which I used in part to write this answer), I will add it. Itâs document 22 in PACER, M.D.N.C. No. 1:16 CV 236 if anyone wishes to go look it up, it will cost $ 4.60 in PACER fees though.Thanks for the A-to-A, Annika Peacock, sorry it too so long to get back to this but I wanted to actually research it a bit.Footnotes[1] http://www.ncleg.net/Sessions/20...[2] Romer, Governor of Colorado, et al. v. Evans et al., 517 U.S. 620 (1996).[3] Perry v. Schwarzenegger[4] Title IX and Sex Discrimination