North Carolina says it will defy feds over LGBT law; ‘We’re not going to get bullied’
I’m interested in the legal handicapping as to these two possibilities (or any other possibilities that might be out there).
What an amazingly stupid hill to choose to die on.
There is no chance – none whatsoever – that the state can win this.
I take that back: if the Republican party can take the White House and enough of the Senate, they can ram through a SCOTUS justice so reactionary it’ll make Scalia look like Thurgood Marshall.
Moderator Action
IANAL, but it seems to me that while there are probably legal precedents and such that can be cited here, I think this is going to involve a lot of legal opinions and not just legal facts. So let’s move this over to our legal opinion forum.
Moving thread from General Questions to In My Humble Opinion.
My guess is that the DOJ will seek a temporary injunction stopping the law from going into effect during the course of the litigation. They won’t want to stop federal funding from going to schools because that would hurt the very students they are seeking to protect.
Too late to ETA: Not a legal expert. But I know of, and can’t possibly imagine, any legal mechanism to give the State of North Carolina what it professes it wants, short of the “political solution” I mentioned.
From the other direction, I wonder if the administration will ramp up pressure gradually (the funds withholding angle) first. If it were up to me, I’d cut out the bullshit and haul the state government into federal court. Enforce it like all other civil rights laws had to be enforced on the same resistant state governments, a generation ago.
That seems extremely unlikely given the state of the GOP this cycle. (And I don’t think Scalia was necessarily a reactionary, though that’s neither here nor there.)
There is judicial precedent that the Civil Rights Act’s prohibition on sex discrimination includes transgender people. Here (PDF) is the DOJ’s letter which cites some of the cases as well as EEOC regulations relating to equal access to bathrooms for employees. I don’t really see how NC has a leg to stand on. A federal court order will make HB2 moot, whether or not they want to repeal it.
I don’t know. The notion that this constitutes discrimination against transgender people rests entirely on the notion that these people need to be defined by their current gender identity. The only precedent here seems to be the one court ruling supporting EEOC position as regards to Title IX. Whether this is the same as the case at hand, and whether another court would similarly require deference to the DOJ definition seems to be the crux of the issue.
This, I would have to think.
Generally, when a law is found to be invalid (e.g., in conflict with a higher law), isn’t the usual remedy to simply hold the law unenforceable – as opposed to demanding that the law be legislatively repealed?
I don’t think the Feds can tell the states what laws to pass or not pass or repeal, but they can tell states what laws they can or can’t implement or enforce. Isn’t that how it’s usually done?
And furthermore, even that requires a “test case” before anything actually happens, right?
Here the DOJ itself can sue the state under their civil enforcement power inherent in the Civil Rights Act. They would (I presume) ask the relevant District Court for an injunction barring enforcement of HB2.
This just means that if Caitlin get’s arrested for going to the ladies room, her punishment will be set aside by a Federal court. The state will eventually quit prosecuting such cases as they are costly and result in no convictions.
I’m thinking exactly this - it’s utterly mystifying to me.
The Attorney General here has already said he will not defend against any suits brought in regards to this bill to boot.
What does that mean? I think you mean prosecute.
No. Here’s what I mean:
NC attorney general refuses to defend state from HB2 legal challenge
One thing that struck me was the speaker of the state house and pro-tem of the state senate claimed you can’t ask a legislature to act by Monday since legislatures inevitably move slowly. Of course they passed the bill in a one day special session.
The AG is a Democrat running for governor against the incumbent and he may think his position will help him. Maybe it will. Recall that the US AG did not participate in the DOM suit. So congress hired their own counsel to represent them.
The Attorney General is the state’s lawyer. He is responsible for prosecuting crimes (though really his subordinates do the grunt work), for suing parties who have wronged the state (ditto), and for defending the state in lawsuits when it is sued (etc).
Here the DOJ is planning to sue North Carolina in federal court using their civil enforcement powers under the Civil Rights Act. The NC AG is saying he will not submit any arguments in defense of that suit.
Or any other suit that’s brought against the state in regards to this particular bill.
Which of those decisions do you believe is binding on North Carolina?
There is one Supreme Court case in the mix, Price Waterhouse v. Hopkins, but it does not involve a transgender plaintiff or restroom access. It’s a Title VII case in which a woman sued her employer after she was denied a partnership for, inter alia, being too “macho” and aggressive. The lead opinion was a plurality, which also does not help a claim that the langauge establishes precedent.
The other cases are not in the Fourth Circuit, and so do not bind North Carolina.
Don’t get me wrong – these are persuasive precedents, but they are not strong enough, in my view, to say that NC doesn’t have a leg to stand on. Their first leg would simply be the observation that not one case cited in the letter is binding in North Carolina.
DoJ won’t have to – NC citizens (via ACLU, etc.) aare already suing. The DoJ could just file agreeing with them.
Or maybe file their own lawsuit – do Federal suits against one of the states go to the Suoreme Court faster?
How does the statute discriminate on the basis of gender/sex? All persons must use the restroom that corresponds to birth gender/sex. That law, if it discriminates, does so against both genders equally. A transsexual male or a transsexual female are both barred from the opposite restroom.
This is not like Jim Crow where the purpose was to subjugate the black race. Which gender is being discriminated against?
It doesn’t discriminate against any single sex, but against individuals who have been sexually reassigned.
This echoes back to mixed-race and same-sex marriages: “There isn’t any discrimination; everyone is free to marry a suitable partner.” Is it the government’s right to determine who is suitable?
Another problem with the NC law is that it pre-emptively denies equal protection to a group of people. That’s constitutionally questionable. Simply saying, “No laws will be accepted that give protection to trans-gendered persons” is asking for trouble. Even if the bathroom part were permissible, the blanket exclusion of a group of people from 14th Amendment coverage is extremely dubious.
(“No laws will be accepted that give protection to people who eat Brussels Sprouts.”)