House Bill 2 (HB 2): New Bathroom and Changing Facility Laws
Now the NCAA and the Atlantic Coast Conference punish North Carolina
Both the NCAA and the ACC removed their championships from North Carolina because of the passage of HB2 which places requirements on where individuals use the restrooms or locker rooms. Since the passage of this bill, businesses, entertainers, and sports leagues have punished the state by cancelling events here. Most notably the NBA cancelled its All Star game that was scheduled for Charlotte next year. Shortly thereafter the NCAA joined the boycott of North Carolina and removed sports events like the NCAA Basketball first rounds from North Carolina. Now the ACC has joined the NCAA and imposed punishment on our sports fans. The ACC has cancelled the following championships that were set to be played in North Carolina:
- Women’s Soccer Tournament
- Women’s Basketball Tournament
- Men’s Swimming and Diving Championship
- Women’s Swimming and Diving Championship
- Women’s Tennis Championship
- Men’s Tennis Championship
- Women’s Golf Tournament
- Men’s Golf Tournament
- Baseball Tournament
- Football Championship Title Game
Cancelling these events is not fair to the citizens of this state, regardless of where one stands on the Bathroom Bill. North Carolinians are already suffering the loss of revenue from other events that have been lost as a result of HB 2. The cancellation of our sports’ events is like pouring salt into our wounds. We hope that this controversial law will not impose any further harm on our state. We love our sports and we love our state.
August 23rd 2016 Legal Update
Just this past Sunday, a federal judge in Texas issued an order that is contrary to the order issued by the Obama Administration that requires public schools to allow transgender students to use a restroom or locker room of their chosen gender identity. US District Court Judge Reed O’Connor issued this ruling on Sunday. This ruling is not inconsistent with an earlier ruling by the United States Supreme Court (SCOTUS) about a case pending in the state of Virginia. The SCOTUS allowed a Virginia School Board to prohibit a transgender male from using the boy’s restroom. The SCOTUS explained that this decision is the best decision at present and will offer the SCOTUS to determine at a later time whether it should intervene. Yes, this decision kicks the can down the road but in light of the current political environment it may be the best course of action. Our Supreme Court may be evenly divided on this issue as we have only eight Justices and no predictable time table for the appointment of the ninth Justice. Right now the issue could be dead locked in a 4-4 tie.
At present, the US Justice Department is certainly reviewing its options which could include withholding federal education funds for Texas.
The issues in this Texas case are similar to the issues in our House Bill 2 which is currently in litigation. All eyes in North Carolina will certainly follow this Texas case closely over the next several months as well as the reaction by the US Department of Justice. No one wants to see a state penalized by denying funds for public education, regardless of the issues being fought.
August 8th Update
Last month, our legislature reconsidered some provisions of the controversial HB 2. They even reversed a small piece of the new law. At the urging of Governor McCrory, both the House and the Senate reversed the part of legislation that took away the rights of employees to sue for wrongful termination in state court. As a result of this new legislation known as House Bill 169, employees in our state may sue in state court for wrongful termination based on age, sex, race or forms of unlawful discrimination. However, now workers in North Carolina have only one year to file suit instead of the 3 years that the law used to provide.
This new law left intact all of the laws that deal with the Lesbian, Gay, Bi-sexual, and Transgender rights to use the restroom/bathroom of the individual’s choice. Opponents of this law say that the changes made in July are far too short and that the entire provisions of HB 2 should be reversed. Again, we take no position on this highly controversial issue and would rather focus on issues dealing with our safety as American citizens and the economic issues facing our state. However, we do recognize the importance of this issue to those who have strong feelings on either side of the aisle.
Since 2011 our legislature has spent about $9 million for legal bills defending the voter ID law and other laws like HB 2. In defense of our legislature, please understand that they are spending money to protect laws which they, as elected officials, passed in our state. We elected them and therefore must understand they are doing their job, whether we agree in principle with the law or not.
June 30th Update
This past week our legislature approved and appropriated $500,000 to litigate House Bill 2, known as the Bathroom Bill. The money will come from the state’s Emergency Response and Disaster Relief Fund. It will go to Governor McCrory’s office to pay for the litigation. This does not mean that it will all be spent on the litigation as no one knows what that amount will cost. However, our Governor did request it and his wish was granted. Again, Riddle and Brantley does not take a position on this highly controversial subject. We will keep you updated as we learn of important news on this issue.
May 13th Update on Bathroom Bill
A lot has happened this week. The state of North Carolina and the Federal Government have traded law suits against each other. The Governor has called the Federal Government a “bully” and the Feds have threatened to halt federal funding to our Public University School System. Please remember that we have no intention of taking sides on this hotly debated emotional issue. Our purpose is to simply give you the facts as we understand them so that you can stay informed. Also remember that each citizen has the First Amendment right to speak his mind. However, we remind you to be respectful in voicing your opinion and understand that making threats and using language that incites violence does not do you or anyone else any good. Poor judgment today in your choice of words can also dilute the integrity of your message.
In this letter the Obama Administration tells public schools that they MUST allow transgender students to use bathrooms and locker rooms consistent with their sexual identity. The letter specifically states, “Title IX of the Education Act of 1972 (Title IX) and its implementing regulations prohibit sexual discrimination in educational programs and activities operated by recipients of Federal Financial Assistance.” Further, the Obama Administration says that this letter is to serve as “significant guidance and provide information and examples to inform recipients how to comply with the law as interpreted by the US Education Department and the Department of Justice.” In a nutshell, both Departments interpret Title IX to require our public schools to treat students consistent with students’ gender identity even if that choice of identity is different from previous representation or records (which we interpret to include birth certificates). Under this directive, only one thing needs to happen. The child’s parent or legal guardian only has to notify the school that a certain child asserts a specific gender identity and then the school MUST accommodate. We are not certain how this directive will play out in various states and schools across our vast country but we hope that the Federal Government continues to provide federal funding to all public schools while the courts try to sort this out and find justice for all. We don’t believe that putting our children’s right to an education at risk serves any positive purpose.
Previous Update from May 10th
Our state legislature and Governor recently enacted new laws regulating how we can use the restroom and changing facilities where we change clothes in the presence of others. This new law has generated buzz like no other recent law and has gained national attention. Riddle and Brantley takes no political position on this new law called the “Bathroom Law.” However, we do support the North Carolina Constitution and the Constitution of the United States. Therefore, in as much or as little at this new law is determined to be in violation of our Constitutions, we support appropriate changes to it. Our only mission is to simply give you the important points of evaluation of the new laws.
You Have to Read It
We recommend that you get a copy of the new law and read it for yourself. It is approximately 5 pages long on your computer and it may be longer if you are reading it from your smart phone. It is called House Bill 2 and it was created by our legislature in session during the month of March, 2016. There are several important points to consider while reviewing this law.
- As with most laws, it is difficult to read and understand. You may have to read it several times and refer back to definitions more than once. Again, this is normal when interpreting “new” laws because it is new and has never been interpreted before.
- The law does more than just talk about rules that apply to bathrooms or changing facilities. The law also addresses state claims for wrongful termination and work place discrimination claims.
- The law does not specifically address punishment for violation of its new rules absent violation of other laws.
- It is currently being challenged and litigated in court as at least 3 separate law suits have been filed.
We don’t know the answer yet as to the constitutionality of this new law as it will be determined in our courts.
What Does it Say?
It mandates that multiple occupancy bathrooms and changing facilities can only be used by students of the same sex, which is determined by biological sex. Biological sex is defined as “the physical condition of being male or female, which is stated on a person’s birth certificate.” Further, boards of education are required to designate that these facilities be used only by students based on their biological sex. In other words, bathrooms and changing facilities which are designed for use by more than one person are to be designated and used ONLY by members of the same sex as determined by birth certificates. Sound confusing? Well it is confusing. There are exceptions listed that allow the rooms to be cleaned by the opposite sex or enter for other emergency or necessary assistance related contingencies. There is also a provision that allows for unisex use but it must be a single stall room. Unfortunately, “single stall” is not defined.
Punishment for Violating this Law: No Teeth
The new law has no provision for punishment if the specific rules are violated by citizens of this state. Therefore, at this time, we are not sure if you can be charged or punished if you violate this law and intentionally use the wrong room. It may be up to local cities and counties to enforce the violations of this new law. If so, then it may be up to those government agencies to determine fines or penalties. However, if you use the wrong room you could be in violation of other criminal law and subject yourself to punishment or even jail time. Remember, we have sex offender laws that will certainly put you behind bars if you violate them, especially if children are involved as victims. At this time, we certainly recommend that you follow all laws of this state, even this new law, regardless of whether you agree with it.
What Else Does House Bill 2 Do to North Carolina Employment Law?
The new law eliminates state claims for wrongful termination of an employee based on color. Now, if an employee seeks to pursue this claim, the claim must be filed in Federal Court and not all lawyers in North Carolina are comfortable in Federal Court. Likewise, the new law eliminates filing state claims for discrimination in the workplace on the basis of ethnicity or national origin. It also eliminates filing state claims for discrimination based on sex such as women being demoted because of their sex. Again, these claims now must be filed in Federal Court. Now, only North Carolina and Mississippi are the only states that don’t provide a state remedy for discrimination in the workplace.
We believe that if 48 other states provide a state remedy for discrimination in the workplace then North Carolina needs to re-examine and evaluate this new law as it has a moral duty to provide its citizens with legal remedies to obtain justice. Lastly, this new law bans cities and local governments from enforcing ordinances addressing discrimination or minimum wage.
Does the New Bathroom Bill Violate the Constitution of the United States?
Maybe and probably is the best answer. In April, the American Civil Liberties Union (ACLU) filed a lawsuit challenging this new law and alleging that it violates Title VII of the Civil Rights Act. Even more recently, the Governor of North Carolina filed suit against the Federal Government. He asks the Federal Courts to clarify the law on HB 2. It is unclear why he would need clarification when he signed it but he has asked for it. The suit was filed in the Eastern District of North Carolina and entitled “Complaint for Declaratory Judgement.” He sued in his official capacity as Governor and named the United States of America and the Department of Justice as defendants. Key points that he alleges are:
- Transgender status is not protected under Title VII
- North Carolina does not treat transgender employees differently from non-transgender employees
In the last page of his complaint, the Governor prays that the court declare:
- The state is not violating Title VII or the VAWA (Violence against Women Reauthorization Act of 2013) by following the state law regarding Bathroom and changing facility use by state employees
- And that the state recovers for their fees and costs involved in filing the action.
Then the Federal Government through the Department of Justice filed suit alleging that the New Law “constitutes a pattern and practice of discrimination based on sex.” The Attorney General, Loretta Lynch, claims that the new law “violates Title VII of the Civil Rights Act of 1964.” At risk are federal funds for our State Public University System. The Department of Justice has issued an ultimatum to our Governor to condemn the new law or it will stop the federal funding of our state’s university system of 17 separate campuses. Governor McCrory filed his suit in an attempt to block the Justice Department enforcement of its threat to halt the federal funds.
Remember that our legislature voted heavily in favor of this new law. The House voted 84 to 25 for it and the Senate voted 32 to 0 for it as the Democratic delegation walked out and refused to vote. Therefore, unless sentiment changes in Raleigh, we are in for a long and nasty battle over this new law and the outcome will not be determined by the citizens of this state but by our courts.
Governor McCrory claims that transgender people are not protected by the 14th Amendment. However, this may be a mistake. The 14th Amendment clearly states, “All persons born or naturalized in the United States … are citizens of the United States” and as such, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens … nor shall any state deprive any person of life, liberty or property without due process of law … nor deny to any person the equal protection of the laws.” Herein lies the problem with the new law enacted by the state. The 14th Amendment clearly protects ALL citizens of the US without qualification or exception. Does the new law abridge privileges or immunities? Does it deprive liberty? Does it deny equal protection of the laws? We take no side on this issue and only point out some constitutional issues for our consideration and future debate. However, we can say without a doubt that we don’t want to lose federal funding of our excellent Public University System.
Follow the Law or Ignore it?
Again, we see no language regarding punishment for violation of this Bathroom Bill. We presume that the legislature intended to leave the civil or other penalties for violation of this new law to the local counties and city governments. However, we don’t know. For now, we certainly advise everyone to follow this law to the letter because it is the law. Remember, that if you go into a bathroom or changing facility that is not your appropriate one then you may be in violation of sex offender laws, especially if children are present. Also, you would not intentionally speed at 90 MPH in a 35 MPH zone just because you did not like the speed limit. Everyone knows the consequences of not following laws so please follow all laws, even if you disagree with them.
Part IV of this Bathroom Bill contains a very interesting provision. It is called a “severability clause.” It states, “If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or application …” In other words, if parts of this new law are determined by the courts to be unconstitutional, then remaining parts are still valid and the law. This language appears to presume that the drafters of this legislation anticipated issues like the ones we are having.
The battle lines are drawn and now we have law suits filed. This is just the beginning.