North Carolina discrimination law violates US constitution, experts warn

New law a blow to LGBT rights by requiring public institutions to designate bathrooms to only be used by people in accordance with their biological sex

North Carolina’s new discrimination law could be violating the US constitution, in addition to dealing a serious blow to LGBT people by preventing any city from creating anti-discrimination protections, experts have warned.

The law, which was rushed through on Wednesday, requires public institutions to designate bathrooms and locker rooms to only be used by people in accordance with their biological sex, which violates constitutional privacy protections.

“If they [transgender people] comply with the law every time they use the bathroom they will be outed because their outward gender expression conflicts with the gender assigned at the bathroom and that could expose them to violence and discrimination,” said Scott Skinner-Thompson, an acting assistant professor at New York University’s School of Law.

The US constitution prevents the state from disclosing information such as a person’s LGBT identity, which is why similar laws are now being challenged in court.

Skinner-Thompson suggests these discriminatory bills are being driven by fear and misunderstanding of gender identity issues. “We already permit gay, lesbian and bisexual people to go into restrooms where they more conceivably have a prurient interest and we don’t care,” he said.

North Carolina lawmakers dodged significant public debate by getting the bill signed into law the same day it was introduced to the state’s general assembly. Yet, they are now being forced to defend the legislation as businesses, law experts and civil liberties groups criticize its sweeping provisions.

A coalition of civil liberties groups are considering legal action against the state government, while private companies condemn the law, – the latest in a series of bills introduced by state lawmakers this year intended to stop transgender people from using bathrooms that match their gender identities.

The question remains, however, of how this law would be enforced and whether a law enforcement authority could be forced to check someone’s body based on an presumed lack of conformity to gender stereotypes.

“Nobody’s going to be looking at your private parts to see if you’re in the right bathroom,” said Republican representative Julia Howard, a co-sponsor of the new law.

The law was spurred by a Charlotte ordinance that sought to allow people to use bathrooms that conform with their gender identity. But Howard said the legislation fixed a problem that Charlotte created.

“If we had not fixed it, it not only would have affected Charlotte, it would’ve affected every business in the state of North Carolina that has any business interest in Charlotte,” Howard said. “So it was much deeper, much deeper than use the bathroom.”

Yet, she said a significant factor in introducing the law was it could make it possible for men to share bathrooms and locker rooms with children and women. “It is a matter of common sense, if you have children, you understand it, if you don’t have children, you understand it,” Howard said.

Howard said the new law was not meant to hurt anybody, and noted, accurately, that under the new law, people who have had gender reassignment surgery and have also changed their birth certificate to match their gender identity can use the corresponding bathroom.

But the surgery is costly, and many transgender people do not find it necessary. The process of changing gender identification on official records is also complicated.

Tensions over the bill led to mounting protests across North Carolina.

Police in Raleigh, the state capital, said five people had been arrested on Wednesday during protests outside the governor’s residence.

As expected, businesses quickly denounced the new law, including American Airlines, which counts the Charlotte airport as its second-biggest hub; Facebook, which has a data center in the state; and Bank of America, which is based in Charlotte.

Bank of America said in a statement that it “has been steadfast” in its commitment to nondiscrimination policies and supporting LGBT employees. “We support public policies that support nondiscrimination,” the company said.

Athletics groups were also forced to assess how the law would impact major upcoming sporting events such as the summer X Games and the NCAA’s annual basketball tournament in Charlotte.

The NBA said it is considering what impact the law will have on the All-Star Game in 2017, which is scheduled to take place in Charlotte. The organization said in a statement it is “deeply concerned that this discriminatory law runs counter to our guiding principles of equality and mutual respect”.

Ricky Diaz, a spokesman for McCrory’s re-election campaign, told the Charlotte Observer on Thursday: “Much of the feedback we’ve gotten from businesses has been positive. They’ve said the Charlotte city council shouldn’t have passed this ordinance in the first place so we wouldn’t have to deal with it now.”


Amanda Holpuch in New York

The GuardianTramp

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