Get ready for a likely U.S. Supreme Court showdown over North Carolina’s so-called bathroom law. Nobody is sure when, but it’s probably coming.
The state sued the feds Monday, and the federal government quickly returned the favor, staging a fight over the law that would require North Carolinians to use public bathrooms that correspond with their biological sex.
Snapshot: North Carolina's transgender law
Name: Public Facilities Privacy and Security Act
When it passed: March 23
Who voted for it: The bill passed the state House 82-26 and the state Senate 32-0, with Senate Democrats walking out and not voting in protest.
What it does: The new law puts in place a statewide policy that bans individuals from using public bathrooms that do not correspond to their biological sex. It also stops cities from passing anti-discrimination ordinances to protect gay and transgender people.
What happens next: A federal lawsuit has been filed over the measure. The state's attorney general says he won't defend it in court. But in the court of public opinion, Gov. Pat McCrory and other supporters of the measure have staunchly stood behind it, saying it's about protecting privacy.
There are reasons scholars and attorneys don’t expect the federal lawsuits to bring a swift resolution. Let’s look at a few:
1. There is conflicting case law – as evidenced by the cases cited in this week’s lawsuits. While federal courts have ruled previously on transgender rights, those rulings sit at opposite ends and span multiple court circuits, according to Danielle McLaughlin, a government investigations attorney with New York’s Nixon Peabody and constitutional law blogger.
The likelihood of the Supreme Court stepping in will spike in the event that federal appeals courts begin to butt heads, too, she said.
2. The issue pits North Carolina Gov. Pat McCrory and those who believe the law is about “bodily privacy” against President Barack Obama’s Justice Department and those who believe the law discriminates against a class of people.
Neither side is expected to accept a lower court decision that doesn’t jibe with its stance. McCrory has repeatedly expressed his intent to keep the law intact, but “there are no questions here as to the direction of the Department of Justice and the resources it wants to put toward fighting discrimination,” McLaughlin said.
3. To quote Bob Dylan, the times they are a-changin’. Opinions are evolving when it comes to transgender rights, creating a rift among the public. Look no further than the split highlighted in a CNN/ORC poll this week that showed 57% of people opposed laws that forced transgender folks to use bathrooms that correspond with their birth certificates rather than gender identities.
“This is an important issue that people are interested in. The (Supreme Court) isn’t going to want to have conflict on this issue for very long,” said Katharine Bartlett, a Duke University law professor and former dean at the school.
So with those thoughts in mind, there remain many questions about how the issue might play out, but ultimately, if the Supreme Court steps in, justices would be charged with deciding whether transgender individuals are protected under federal law.
The Equal Employment Opportunity Commission has been clear that discrimination against transgender people is tantamount to sex discrimination, but that relates only to Title VII of the Civil Rights Act, which deals with employment discrimination.
In its lawsuit, the Justice Department also alleges violations of Title IX of the Civil Rights Act, which addresses discrimination in schools, the Education Act and the Violence Against Women Reauthorization Act.
Which court is handling all this now?
There’s a little confusion here. McCrory and his public safety director sued the Justice Department in U.S. District Court for the Eastern District of North Carolina’s Western Division. That’s also where state House Speaker Tim Moore and Senate President Pro Tem Phil Berger filed a separate suit against the Justice Department.
The Justice Department filed its case in U.S. District Court for the Middle District of North Carolina.
The two courts could take up the cases and decide them separately, and if their rulings conflicted, it would spur a decision from the 4th U.S. Circuit Court of Appeals. North Carolina would have to abide by the appellate ruling until the high court stepped in, Bartlett said.
However, she points out, there’s another option: consolidating the cases.
But the federal Manual for Complex Litigation says, “Plaintiffs’ choice of forum is … entitled to substantial deference.”
Why is public opinion so important?