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 From: James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 2:06 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 Will, I'm glad the information was helpful. With respect to your follow-up question, I'm not familiar with any other jurisdictions in which restroom carveouts have been eliminated. That said, I would not expect there to be many such jurisdictions as it appears that restroom carveouts to public accommodation provisions are relatively rare. As to why Charlotte eliminated its carveout, I think it is much more likely to have been aimed at making sure transgendered individuals could use the bathroom (or Y facility) matching their gender identity than it was to achieve the "radical" goal of eliminating separate men and women's bathrooms (or Y facilities). In at least one prior case, a restroom carveout like the one in the old Charlotte ordinance resulted in the dismissal of a discrimination case by a person who was allegedly harassed by a security guard after using a women's restroom because they were perceived to be transgendered. See In the Matter of Toni Jefferson, 2001 WL 474465. I strongly suspect the supporters of the Charlotte ordinance had situations like that in mind, and I have a very difficult time imagining the Charlotte Community Relations Committee interpreting and applying the new ordinance -- which, again, is identical to public accommodations provisions in states and localities across the country -- as requiring a brave new world in which pubic accommodations are required to allow "straight boys into the girls showers." But if the NC law is struck down or repealed, perhaps we'll find out. - Jim On Thu, Mar 31, 2016 at 6:21 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: Jim, That is helpful information and I appreciate you sharing. Do you know if any of those other non-discrimination provisions contained specific carevouts for bathrooms, showers and locker rooms, and the carveouts were later eliminated? Here, the Charlotte City Council knew the public concern on this point, and could have amended the law in some form or fashion if they did not mean to entirely eliminate single sex bathrooms. They did not do so. If I'm not mistaken, the normal rule of statutory construction is that if a statute contains an exception and that exception is explicitly removed, then the exception no longer applies. That is certainly the normal and logical way to look at the ordinance. What makes that argument even more compelling here is that the Charlotte City ordinance had three carveouts to the sex discrimination provision. The one about bathrooms and showers was the first. The second carveout was for the "YMCA, YWCA and similar types of dormitory lodging facilities" and the third was for private clubs. The private clubs exception is still in the statute (just another section). The bathroom/shower exception and the YMCA / YWCA exceptions were stricken. It would be a curious argument that elimination of the YMCA carveout was meaningless and the YMCA and YWCA were still exempt from the sex discrimination provisions of the ordinance, particularly when one of the three exceptions was left in the statute. Will Esser ________________________________ From: James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Thursday, March 31, 2016 7:16 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom Will expresses concern about "how truly radical the Charlotte City ordinance was" and how it was "entirely over the top." It would appear, however, that the changes made to the ordinance in February simply made it consistent with the majority of other state and local laws prohibiting sex discrimination in places of public accommodation, most of which do not have explicit restroom carveouts written into them. Here are just a few examples of such laws without explicit restroom carveouts: Missouri: http://www.moga.mo.gov/mostatutes/stathtml/21300000651.html West Virginia: http://www.legis.state.wv.us/wvcode/code.cfm?chap=05&art=11 Utah: http://le.utah.gov/xcode/Title13/Chapter7/13-7-S2.html Oregon: http://www.oregonlaws.org/ors/659A.403 City of Atlanta: https://www.municode.com/library/ga/atlanta/codes/code_of_ordinances?nodeId=COORATGEVOII_CH94HURE When the unusual (but not unprecedented) separate sex discrimination provision in Charlotte's old ordinance was removed, and sex was placed into the general public accommodations provision with all the other protected classes, here is how the operative provision of the new Charlotte ordinance read: It shall be unlawful to deny any person the full and equal enjoyment of the goods services, facilities, advantages, and accommodations of a place of public accommodation because of race, color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender expression, or national origin. If that provision is "truly radical" and "over the top," so are the provisions of numerous other jurisdictions. And of course, as Doug has pointed out, if the lack of an explicit restroom carveout in the new Charlotte ordinance was the North Carolina legislature's real concern, it could have passed a law limited to that issue. Instead, it removed all municipal nondiscrimination protections for LGBT individuals. At this point, it seems pretty obvious that having failed to convince the public that protecting against sexual-orientation and gender-identiy discrimination is a bad idea as a general matter, opponents of LGBT nondiscrimination laws are focusing on the restroom issue because the "men in women's bathrooms" talking point has proven politically salient (see, e.g., Houston campaign), even if there is no evidence that it has ever been a problem in any of the 21 states or hundreds of municipalities that have added sexual-orientation discrimination and gender-identity to their public accommodations laws. - Jim On Thu, Mar 31, 2016 at 2:20 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: Paul, My main point was how truly radical the Charlotte City ordinance was in entirely doing away with unisex bathrooms in public accommodations. (I trust you are not taking the position that it is advisable public policy to allow non-transgender, straight boys into the girls showers in the YMCA?) The point was that the Charlotte City ordinance was entirely over the top. People can have a healthy debate about whether the NC law should go farther in providing allowance for changes to a birth certificate, but that's a very different debate than entirely doing away with unisex bathrooms. The Charlotte City Council used a club when they should have tried a scalpel. To turn this back to religion and the law, let's assume that the Charlotte City ordinance had gone into place as drafted (i.e. a non-discrimination provision that does not allow discrimination on the basis of sex with no exceptions for bathrooms). The YMCA is defined as a public accommodation under the ordinance and it is sued when it refuses to allow boys into the girls' showers. The YMCA argues that it won't let the boys into the girls showers based upon its religious principles which flow from the Bible, including a prohibition on pre-marital sex and an obligation to protect youth from temptation. How do listserv members think that comes out? Isn't this an example in which the religious principles of the YMCA should clearly trump the non-discrimination provision? (Again, this is not a fictional hypothetical. That is actually the ordinance the Charlotte City Council passed and which would have gone into law but for the NC legislature's action). Will Will Esser ________________________________
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