Duke Law Panel Examines Controversial House Bill 2

Panel members emphasized that the culture at the Law School and university is not reflected by the Legislature

During a panel discussion Thursday, Duke Law students and faculty analyzed a new state law that strips anti-discrimination protections from LGBT citizens, and emphasized that the culture at the Law School and university is not reflected by the Legislature. (To watch a video of the entire discussion, click here.)

Rosie McKinley ’17, president of the Duke Bar Association, acknowledged that concern over the law extends beyond the classroom.

“I feel this law as a law student, but I also feel it as a person,” said McKinley, adding that knowing that she and her girlfriend have a different set of protections and rights than they did before the law was passed “feels strange and it feels wrong.”

Sponsored and organized by the LGBT student group OUTLaw, the panel took place just as the Law School began Admitted Students Weekend. Incoming OUTLaw President Paul Gray ’17 offered to speak with any current or prospective students who had questions about LGBT life at Duke.

McKinley described student response to the law, including a letter sent to the office of North Carolina Gov. Pat McCrory, signed by 170 law school students, that condemns the law as “unrepresentative of the values we cherish as residents of this state.”

“Law students are very particular about language, so the fact that a quarter of our class could agree on about three paragraphs that were going to the governor meant a lot, especially to those of us in OUTLaw,” McKinley said.

Faculty members Jane Wettach and Katharine Bartlett described the circumstances surrounding the law’s passage, and analyzed its content and the merits of a suit filed against the law by the American Civil Liberties Union.

Wettach described the impact of the law, which the state Legislature passed in the aftermath of Charlotte enacting an anti-discrimination ordinance specifically protecting LGBT people and allowing transgender individuals to use bathrooms based on their sexual identity. The law’s proponents argued that it protected bathroom privacy and prevented sexual predators from gaining access to bathrooms.

In superceding the kinds of anti-discrimination law passed by Charlotte and those already in place in Chapel Hill and Durham, the state law also removes provisions preventing businesses from refusing services to LGBT citizens based on religious beliefs, among other things, Wettach said.

Backlash to the new law, both statewide and nationally, came from many quarters and included many businesses that employ people in North Carolina.

Bartlett said that the success of the ACLU’s challenge to the law may depend on legal precedent set by the Supreme Court’s 1996 decision in Romer v. Evans. In that case, the court found that Colorado’s constitutional amendment preventing protected status based on sexual orientation was unconstitutional. The ACLU will have to show that the intent of HB 2 “was deliberately to exclude this population and withdraw rights that this population already had and that there wasn’t any other legitimate purpose other than to act out of prejudice and bias against this group,” Bartlett said. “That’s what Romer really stands for, and what this case will need to be.”

Lawmakers’ claims that the law is about protecting women and girls from sexual predators will help the ACLU prove its case, Bartlett said.

“Unless they’ve got some facts about bathroom predation, it’s going to be hard to argue that it was anything other than bias against a specific group,” she said. “It’s going to help the ACLU that they took the bathroom issue and then moved to an extremely broad disqualification of the LGBT community from protection.”

State legislators do have the power to pass an anti-discrimination law that preempts local ordinances, Bartlett said, but the intent of the law is what will determine its constitutionality.

“North Carolina does have the power to pass an anti-discrimination statute, and in that statute it has the power to exclude LGBT individuals – many such statutes don’t explicitly include those individuals,” she said. “And it does have the power to preempt local governments from passing their own anti-discrimination statutes. It doesn’t have the power to enact legislation against a group because of irrational bias and prejudice.”

The Supreme Court will likely hear a related case in the near future, Wettach noted. G.G. v. Gloucester County School Board involves a transgender student who sued his Virginia school district for banning him from using the bathroom designated for boys. A federal judge upheld the school district’s ban, and the case was appealed to the Fourth Circuit, where judges heard oral arguments in January. An opinion is still pending.