Wednesday, May 11, 2016

Time to Man Up about the NC Transgender Law

Time to Man Up about the NC Transgender Law

File:White House rainbow colors to celebrate June 2015 SCOTUS same-sex marriage ruling.jpeg

The White House in rainbow colors celebrates June 2015 SCOTUS same-sex marriage ruling.


North Carolina, in an effort to protect the religious freedom of bigots who want to force their religion on others, teamed up with the sardonically[1] named “Liberty Counsel[i]” to protect North Carolinians from transgender bathroom predators.  Most people know that this law was passed to preempt the Charlotte, NC ordinance that would protect transgender people and allow them to use the bathroom of the gender that they identify with.  One would think that these predators must be incredibly stealthy since there are no records of any criminals using transgender laws to assist them in stalking people in public restrooms[2][ii]

Last week, the federal Department of Justice has informed Gov McCrory that the law constitutes a pattern or practice of discrimination against State[3] employees in violation of title VII of the 1964 Civil Rights Act and also violating title IX of the 1972 Education Amendments.  They have threatened to withhold federal funds, potentially billions of dollars, of federal funding unless McCrory confirms that the state will not implement the law[iii].  The DoJ gave McCrory 5 days to comply with the remedy they offered for this discriminatory bill that only took 12 hours[iv] to be proposed, debated, amended, debated and amended some more, passed, delivered to the governor, and signed into law.

Now, the sides have chosen their positions.  The DoJ already has the presumptive weight of administrative deference from the courts; courts usually will side with administrative agencies because the agencies have expertise in their specific areas of law.  However, even with this strong hand to play, the DoJ chose to offer a weak compromise on the bill.  North Carolina Republicans have chosen to dig in their heels and, as of early on Monday, May 10, which is the deadline from the DoJ, they have openly refused to budge on the bill.  They even have filed a lawsuit against the DoJ to prevent them from enforcing the law in North Carolina.  They claim that this is federal overreach and that the federal government has no right to demand this.  They also state that they will not be bullied by the federal government[v].  Apparently, when there is bullying North Carolina, Republican legislators are determined that they will be the bullies.  The lines are drawn for a showdown.  However, I think that these Republicans, as stupid and bigoted as they are, are right that the federal government should not demand this weak compromise for several reasons.

First, this is an enacted piece of legislation by an elected body.  It will stand as good law unless one of a few things happens.  The most preferred possibility is that the North Carolina legislature implements a legislative fix.  It would be wonderful it they would come to their senses and just repeal this abhorrent law, and the governor, looking somewhat less foolish and prejudiced for seeing the light, immediately signing the repeal.  A second option would be for the bill to be properly challenged in court, recognized as the hate-baiting and unconstitutional measure that it is, and struck down[4].  It could also be repealed by citizen referendum, if the State’s constitution allows that.  The DoJ, for its part, attempted to go a different, extralegal, route.

The DoJ, in an attempt to gain voluntary compliance with United States law, tried to skirt the law.  They offered to not cut the State’s title VII and IX funding in exchange for the governor’s promise not to enact the anti-transgender portion of the law.  While it’s laudable that the DoJ has tried to avoid court with the voluntary compliance offer, the reporting sounds less like mediation and more like the government is strong-arm negotiating a business contract.  What’s worse is that they still leave the law as a potential problem. 

The ways to get rid of this law described a couple paragraphs above are the legal ways to get rid of it.  The DoJ’s offer takes none of those paths.  The governor and many members of the executive branch take oaths of office which require them to enforce the law.  The DoJ offer leaves the law on the books and still in effect, though not enforced.[5]  Even if this governor signs an agreement not to enforce the law, that won’t necessarily prevent others from doing so, since they aren’t parties to the contract.  Then there will be potential whistleblower claims if the governor does step in to curtail enforcement.  Other State officials could try to enforce the law, and would have an actual argument that they were following the law as written in their State.  That means the law could still be used to harass people with impunity.  If you don’t believe me, then let me relay a story that happened in Michigan many years ago . . .

I remember hearing a story on the radio that a man had been arrested for cussing and swearing.[vi]  The man had been canoe riding in a river when his canoe capsized and his buddies began to mock him.  He then dropped an f-bomb from his mouth that amused his buddies even more.  Then he began to unload a larger payload of f-bombs; each causing an explosion of laughter from his friends.  Soon his friends began to counter with f-bombs of their own.  Apparently, it must have been as horrific with the fire-bombings in Tokyo during WWII – where witnesses claimed that even one of the rivers in the city was burning – because the young guy was charged with a crime by a sheriff’s deputy.  He was then convicted.  However, the law itself was declared unconstitutional and his conviction was overturned on appeal a few years later.

The law was from 1897 and was 102 years old at the time he was arrested in 1999.  When I was in law school, this law was used as a teaching example.  It was still written in the State code books.[6][7][vii][viii]  You only knew that it was already unconstitutional if knew enough to read the fine print of legal citations underneath the law.[8]  Otherwise, you must understand how to research the law to find the case where it was overruled[9]

Now, if the bathroom bill is allowed to stay on the books then transgender folks remain at risk.  One would hope that the police officers are trained as to what is constitutional and what is not.  On the other hand, the cussing canoeist being arrested for violating the swearing ordinance from a century earlier shows otherwise.  We barely spent any time on laws like that when I went to law school several years later because there was no controversy – those laws are unconstitutional.  Now, let’s see how this could play out in North Carolina.

If this law remains on the books, then police officers can make an arrest based on the law as written and claim that enforcing the law is not only permissible, but required by their oaths of office.  The danger increases if they just get an agreement from the current governor for a few reasons.  First, the governor could let the furor die down, and then make noise about the law being valid when he needs publicity.[10]  Second, since the law has never been officially repealed or overruled, there is nothing preventing a later governor from reversing course and declaring the law enforceable.  That also goes for later sessions of the State legislature and other law enforcement officers as well. 

So, while it’s unlikely that any prosecution would proceed, because the DoJ would be expected to step in, it’s still very likely that rogue government agents could still use this law to harass people.  This would not be used just to target LGBTQ+ people.  Since it can be difficult to tell what a person has within their underwear, this law could target regular citizens who don’t conform to sexual stereotypes and could be easily targeted.  One was a lady who had some pretty bad facial hair – enough to give her a nearly full beard.  If she had a shadow toward the end of the day, she would be an easy target for a rogue officer.  I’ve also known a few ladies that were total tomboys – they had short hair and usually wore jeans and a t-shirt – but were straight.  Going back to the LGBTQ+ community, what about effeminate gay guys who, while being biologically male from birth, present as rather feminine?  (This level of vagueness makes the law unconstitutional on its face.)  There are just too many ways for the offered compromise to be ignored by State officers.

Given all these pitfalls to their plan, here’s what they should have done instead.  They should have just cut off North Carolina’s federal funding.  Then they should have filed a lawsuit in court for a declaration that the DoJ may properly withhold the funding and to grant an injunction that would make the law unenforceable[11].  [Update: this is exactly what the DoJ did earlier May, 10, 2016.]  This method will give a final and definitive conclusion to this nasty little law, and should do so quickly.

I also think they should take their sweet time about it.  This law is so poorly written that it is nearly certain to be declared unconstitutional at the district court.  The longer this case takes, the more federal funding North Carolina potentially loses, and this money does not have to be given back to the State once they lose the case.  At $4.3 billion per year of funding[12], those losses can blow a hole in a budget quickly.  It is only fair that the people who elected these bigoted legislators feel the full karmic wrath of their representative’s bigotry.  Yes, it will hurt the innocent too, but that should be an even better motivation to not allow this type of bigot back into State government again.

Professor Brendan Beery, a scholar of constitutional law at Thomas M. Cooley Law School, has expressed a wish that would take my solution even further.  He beleives that the district court will grant the declaration confirming the DoJ has the right to withhold the funding because it’s blatantly discriminatory.  However, he would rather see the injunction denied[13], which would keep the law active and on the books.  This would create a strange situation where the DoJ would continue to withhold federal funding to the State until the State itself invalidates the law.  Forcing them to choose between the money and their bigotry would be an even more just reward for these legislators.  If that happened, then it would be hilarious to watch how quickly they move to repeal the law that they have professed such adamant belief in. 

Well, we can only hope for such a just outcome.  Let’s all cross our fingers.

[1]Sorry, I know this isn’t a common word, but it’s just to perfect not to use here.
Sardonic: characterized by bitter or scornful derision; mocking; cynical; sneering; A synonym to sarcastic, but with a meaner feeling about it.
[2] I’ve seen video of Chris Wallace interviewing McCrory and citing and quoting this same Fact-check article, so this one can’t just be “the liberal media bias.”
[3] “State” capitalized is not a mistake.  In the Constitution, the word State is consistently capitalized, probably to stress that these were independent nations coming together.  Even transcriptions of the Constitution capitalize “State”.  If this was good enough for our founding fathers, then it’s good enough for me too.
[4] I’ve seen links to a couple of stories that court challenges have already been filed.
[5] Even if the governor concedes that the law is unconstitutional in the agreement, it should carry no weight in any court proceeding if the DoJ tries to enforce the agreement.  After all, he should have known this before he signed the law into effect.  How  much weight do you give to the pronouncement of someone stupid enough to enact a law that they concede was illegal just a few days later?
[6] Fortunately, this law has been officially repealed effective March 14, 2016 – only 14 years after being declared unconstitutional!  It now has a nice and bright red-lettered message informing the citizenry that this is no longer good law.
[7] However, looking at a different code section, it is still a misdemeanor to curse using the holy trinity. 
[8] Granted, most people trained in law would look here, and notes are placed at the front of overruled laws in the modern e-version of the Michigan State code, but not consistently.  However, if you are a normal citizen, these citations are just gobblety-gook and could easily be overlooked.
[9] This is a general fault of the way laws are compiled.
[10] Keep in mind, this governor is a Tea Party extremist.  He doesn’t care about the general populace; he cares about keeping his narrow Tea Party based engaged.
[11] An injunction is granted when a law is unconstitutional. 
[12] That’s $358 million per month.
[13] Judges try to find ways not to address the constitutionality of a law whenever they can.  Sometimes they will refrain from declaring a law unconstitutional to maintain proper etiquette, but do so under the certainty that a higher appellate court will have no problem making such a declaration.

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