North Carolina has enacted a controversial law prohibiting transgender people from using the bathroom of the gender they identify with. This law impacts anti-discrimination laws throughout the entire state. It has gotten attention from corporations, celebrities and sports organizations that are threatening to take their businesses and concerts out of North Carolina as a means of protesting the law.

The Daily Orange interviewed Thomas Keck, an associate professor of political science at Syracuse University who specializes in constitutional law and LGBT rights, and Eric van der Vort, a Ph.D. candidate of political science who also studies American politics and LGBT rights at SU, via email to clarify what kind of impact the law has had.

The Daily Orange: The law says that people must use the restroom according to the gender written on their birth certificate, but can you explain how it also affects other anti-discrimination laws?

Thomas Keck: The spark for it was that the city of Charlotte amended its anti-discrimination law — it already had an anti-discrimination law that covered race, gender, religion and veteran status, and it had recently added gender identity. Conservative opponents in the state legislature raised the issue about the bathrooms, but they also in the new law repealed Charlotte’s entire anti-discrimination ordinance — the whole thing — applying to any category of discrimination, and said that no local government anywhere in the state is allowed to enact an anti-discrimination ordinance at all, and that there will just be a statewide anti-discrimination law that only applies to race, religion, color, national origin, age, biological sex or handicap, so it does not include sexual orientation or gender identity.

Eric van der Vort: Legislation like this has several effects. It has the immediate effect of defining gender in a very narrow and exclusionary way — what the legislation terms “biological sex” as marked on an individual’s birth certificate. It requires that schools and public agencies make individuals use the bathroom that accords with their biological sex as defined in the law. … Nondiscrimination protections like the ones in question apply to public agencies, but also apply to businesses when they make hiring decisions or when they provide public accommodations, like hotels and restaurants. The question in these laws is who is protected and who is not protected. These bathroom bills are very clearly written with the intent to exclude transgender and gender-nonconforming Americans.

The D.O.: North Carolina Gov. Pat McCrory says that 25 other states have the same rules and regulations, and that the backlash against North Carolina is “more political theatre than reality.” Is this true, and if so, why has North Carolina been getting all of the attention?

T.K.: It is true that only about half of the states ban discrimination on the basis of sexual orientation, and Congress doesn’t ban it, so that part is true, but North Carolina I think is the only one where state law doesn’t ban discrimination on the basis of sexual orientation and state law prohibits local governments from banning discrimination. Many other states have the same statewide laws as North Carolina, but individual cities in those states have the option to try to change the law in that specific area.

E.v.d.V.: North Carolina is one example of what I would call a new front in the battle over LGBT rights. … Last year, Indiana passed a broad religious freedom law that provoked a lot of backlash from celebrities and businesses, just like North Carolina is facing. The hard work of LGBT advocates in building relationships with big names and big business has helped to show that passing these laws has real consequences. The response is more than political theatre — it comes from very real concerns in the LGBT community about states sending signals that discrimination will be tolerated or permitted.

The D.O.: Don’t laws like this go against the Constitution? If so, how are they still able to be passed?

T.K.: The second half is blatantly unconstitutional, and the bathroom part is probably unconstitutional too. Governments can pass unconstitutional laws and it’s up to the courts to strike them down and that takes a little while, so there’s nothing that prevents them from actually doing it. I know a lawsuit has already been filed, and it might end up being two different legal disputes about the two different parts of the law.

E.v.d.V.: The constitutional principles involved in LGBT rights cases are still unclear, which leaves states a lot of room to move in passing legislation. Some states have pursued the religious freedom option, which invokes a different set of constitutional principles based on the First Amendment’s broad religious protections. Potty politics and religious freedom bills are different in many ways, but the same groups are behind much of this legislation. They’re connected to the same political project.

Published on April 25, 2016 at 8:39 pm

Contact Caroline: cbarthol@syr.edu