Just days after North Carolina lawmakers passed the controversial Public Facilities Privacy & Security Act (“Act”), the American Civil Liberties Union (“ACLU”) has filed a lawsuit challenging the law.
Although the title of the Act seems to imply that it just addresses the use of public restrooms, the law actually goes far beyond that. Opponents of the Act, say that it is a sweeping attack on the LGBT community.
North Carolina legislators passed the Act after the city of Charlotte enacted an ordinance making it illegal to discriminate against people on the basis of sexual orientation and gender identity. The Act not only states that people must use restrooms assigned to their “biological sex,” it prohibits any municipality from passing certain laws regarding employment. This means that local governments cannot pass anti-discrimination laws or laws that affect the wages of employees such as minimum wage hikes.
Many employers may like the idea of uniform state-wide consistency in the laws. However, many businesses have already publicly condemned the law. In some states, such as Georgia, corporations’ attacks on such laws have doomed them. As of today, although some businesses have blasted the law, others have publicly supported it. So far, no corporation has actually threatened to pull its business or refuse to conduct future business in the state. It is unclear whether corporate pressure, on either side, will affect the political process.
It is also questionable whether this law as drafted will be upheld. It will be interesting to see if the courts expand the Obergefell v. Hodges decision to strike down the law as being unlawful discrimination. The EEOC has been taking a very aggressive position that sexual orientation and gender identity are protected under Title VII’s prohibitions on gender discrimination. If the EEOC is right that the existing federal laws prohibit discrimination on the basis of sexual orientation and gender identity, then the Act not only implicates Title VII, it implicates Title IX since it applies to public universities. Schools found to be in violation of Title IX can lose federal funding.
Although the EEOC has been pushing the boundaries of Title VII interpretation, so far the issue of whether Title VII does in fact outlaw discrimination based on sexual orientation has not been addressed by the Supreme Court. North Carolina lawmakers may have unwittingly pushed this issue to the Supreme Court