House Bill 2 Repealed But Challenges Remain for LGBTQ Community

The repeal of House Bill 2 ends a year of high drama in The Old North State, but many challenges remain for the LGBTQ community. Gone is the most odious provision of this notorious law. The clause prohibiting anyone from using a restroom other than that which corresponds to their birth certificate is history. But also missing is any protection affirmatively granting transgender, genderqueer, and gender nonconforming people the right to use the restroom corresponding to their gender identity.

This vacuum is a return to the status quo pre-HB2. For publicly-owned facilities, gone is the worry that using the restroom could potentially have criminal repercussions. Without any legal protection, however, the simple act of using the restroom continues to be dangerous in light of potential harassment or physical aggression from others in the bathroom.

As to private employers, it remains legal in North Carolina to deny someone employment or access to public accommodations on the basis of their sexual orientation or gender identity following this repeal. Local governments are powerless to provide otherwise until December 1, 2020.

Victims of race, religion, color, national origin, age, gender and disability discrimination do enjoy some relief under the repeal bill. HB2 (and its July 2016 amendment) changed the statute of limitations on all forms of discrimination claims from 3 years, down to 1 year from the date of a discriminatory termination. The repeal bill brings back the 3 year time limit. This is important progress since the Equal Employment Opportunity Commission is still usually investigating the matter at the one year anniversary date. However, you should always discuss matters with an attorney as soon as possible since there are always other time limits that affect individual situations (including time limits ranging from 30 – 180 days).

While the state legislature is unlikely to establish any new protections for the LGBTQ community in North Carolina – Local governments are prohibited from doing so through 2020 – the Courts are in a position to continue the progress achieved by LGBTQ civil rights activists in recent years.

In addition to recognizing that the fundamental right to marry is guaranteed to same-sex and opposite-sex couples alike, Courts have also found that federal anti-discrimination laws apply to the LGBTQ community in the following situations:

• Harassment & Discrimination based on sexual orientation are discrimination based on sex and prohibited by Title VII of the Civil Rights Act of 1964;
• Harassment & Discrimination based on gender identity are discrimination based on sex and prohibited by Title VII;
• Same-Sex harassment is illegal;
• Harassment or Discrimination based on failure to adhere to gender stereotypes is illegal;
• Harassment or Discrimination related to sex reassignment surgery is illegal.

While formal, unambiguous codification of LGBTQ civil rights in these areas is likely many years away after the North Carolina repeal bill and the election of Donald Trump, there are many legal avenues still open to LGBTQ citizens faced with discrimination.

Kevin P. Murphy

Kevin P. Murphy comes to Van Kampen Law from Littler Mendelson, consistently recognized as the nation’s leading management-side labor and employment firm. During his years with Littler, Kevin represented the nation’s largest employers in discrimination, retaliation, harassment, wage and hour, labor, and non-competition litigation, in both class action and individual cases. Kevin has taken several of these cases to trial before federal and state courts, while securing the dismissal of others through motion practice. Kevin also successfully resolved many other cases through formal and informal mediation and represented employers in federal and state agency investigations.