There has been a spate of anti-LGBT legislation in states around the nation. The stated purpose of these legislative efforts is often narrowly framed, such as to deal with what bathrooms people can use. In some cases they are more broadly framed as being to enable religious people to act according to their beliefs without fear of prosecution. North Carolina and Mississippi have been in the spotlight but the Human Rights Campaign lists 28 such bills around the country.
But in reality, the practical outcome of these bills is to enable people to broadly discriminate against others. The investigative journalism outfit ProPublica shows how the North Carolina legislation, ostensibly dealing only with bathroom access targeting the transgender community, has much wider implications.
As has been widely reported, the North Carolina legislature rushed last month to pass HB2, the Public Facilities Privacy & Security Act, which requires transgender people (and everyone else) to use public restrooms according to the biological sex on their birth certificate. It also bars local governments from passing ordinances like Charlotte’s.
The legislation doesn’t stop there, however. Tucked inside is language that strips North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985. “If you were fired because of your race, fired because of your gender, fired because of your religion,” said Allan Freyer, head of the Workers’ Rights Project at the N.C. Justice Center in Raleigh, “… you no longer have a basic remedy.”
“The LGBT issues were a Trojan horse,” added Erika Wilson, a law professor at the University of North Carolina who co-directs a legal clinic for low-income plaintiffs with job and housing discrimination claims. The broader change hasn’t received much attention, she said, because “people were so caught up in [the LGBT] part of the law that this snuck under the radar.”
Others pointed to a burgeoning trend in which conservatives are exploiting a backlash against gay marriage and transgender rights to push legislation with broad ramifications. In Georgia, the governor vetoed a bill allowing faith-based organizations the ability to refuse to rent property, provide education or charitable services, or do any hiring that violates their religious beliefs. In Mississippi, a bill that passed the legislature last week would permit discrimination against anyone who has nonmarital sex. [Update, April 5, 2016: Mississippi’s Republican Gov. Phil Bryant signed the bill into law.]
HB2 “is more evidence that the forces behind this backlash have a larger agenda than simply attacking marriage rights for same-sex couples,” said Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality Law. “They also seek to unravel protections against race discrimination in public accommodations and other contexts.”
It is always thus. As we take two steps forward in increasing the rights of formerly marginalized groups, we take one step back as those opposed to those measures find ways to strike back. The emancipation of slaves saw the arrival of Jim Crow laws that required the Civil Rights acts to rectify.
The recognition of the constitutional right of same-sex couples to marry and the increasing awareness of the needs and rights of the transgender community is sparking a similar backlash and will require a fresh round of activism to combat.