But McCrory has a bigger problem: HB2 is also unconstitutional. Not just the bathroom provisions—the whole thing.
To understand why, go back to the 1996 case of Romer v. Evans, the first major victory for gay rights in the Supreme Court. In 1992, the voters of Colorado had amended their state constitution to provide that no state agency, city, or county could make “homosexual, lesbian or bisexual orientation, conduct, practices or relationships … the basis of … minority status, quota preferences, protected status or claim of discrimination.”
In Romer, the Court struck down Colorado’s “Amendment Two,” holding:
[T]he amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.
Romer’s language—and the concept of “animus”—may hold the key to the cloudy future of HB2. Much of the law has nothing to do with bathrooms and really isn’t even about trans people in particular. HB2 has a larger goal: to thwart any movement toward equality for the state’s entire lesbian, gay, bisexual, and transgender community. The bathroom rules occupy only one part of a five-part bill. Part II says that no city or county can require its contractors not to discriminate against employees or customers based on sexual orientation. Part III invalidates all present city and county ordinances protecting LGBT people from discrimination in private employment and public accommodations. It provides that only the state legislature can enact such a law from now on. Good luck with that one.
The state, in other words, has declared open season for discrimination on sexual orientation. That is mean-spirited, to be sure. But does it violate the Constitution?
Again, go back to Romer v. Evans—the answer begins there and branches out. The North Carolina law has almost the same effect as Colorado’s Amendment Two, but its language is quite different. The Colorado measure said no law could protect gays and lesbians; it didn’t say that no law could protect straights against discrimination by gays, if that were to become rampant. It was textually aimed only at one group—as Justice Anthony Kennedy’s opinion said, “not to further a proper legislative end but to make [that group] unequal to everyone else.” That broad language made the measure an easy target for the Court, which said it “lack[ed] a rational relationship to legitimate state interests”—constitutional-speak for, This law is so mean that its only possible purpose is to hurt gays and lesbians.
HB2 doesn’t mention sexual orientation or transgender status; it simply lists the traits that canbe protected from discrimination: “race, religion, color, national origin, or biological sex.” (“Biological sex” is intended to block any local sex-discrimination statute from applying to trans people. Note also that sexual orientation is not protected in HB2.) Localities, the bill says, cannot protect any other groups. That reads differently from Colorado’s Amendment Two; for one, it doesn’t mention LGBT people. Further, it doesn’t invalidate any possible policy or law protecting them (as Amendment Two did) but only those laws aimed at employment discrimination or public accommodations. It’s a harder target than Amendment Two.