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One News Now

The Truth about HB 2 and Discrimination

Former Speaker Pro-Tem of the NC House explains in the simplest of terms why HB 2 does not discriminate
By Paul Stam
Christian Action League
February 2, 2017

North Carolina state law on non-discrimination is the same or very similar to that of 28 other states.[1] For visual proof please examine the two maps below compiled by opponents of HB2. (Maps are viewed with full article at the link below) On each map the gray states like North Carolina do not have extra special rights based on “sexual orientation” or “gender identity.”

Proponents of the Charlotte type discrimination ordinance say it has been enacted in 200 cities nationwide. Some of those cities are in states marked gray. Their leader, Chris Sgro, uses 100 cities. Whether it is 100 or 200 means that about 10,000 other cities and towns nationwide do not have an ordinance similar to Charlotte’s.

NORTH CAROLINA LAW PROTECTS THE RIGHTS OF LGBT PERSONS. LGBT PERSONS HAVE

THE SAME RIGHTS THAT OTHERS DO. Let me explain in detail:

 The Truth about HB2 and Discrimination

Paul Stam
February 1, 2017

North Carolina state law on non-discrimination is the same or very similar to that of 28 other states.[1] For visual proof please examine the two maps below compiled by opponents of HB2. On each map the gray states like North Carolina do not have extra special rights based on “sexual orientation” or “gender identity.”

www.aclu.org

www.transequality.org

Proponents of the Charlotte type discrimination ordinance say it has been enacted in 200 cities nationwide. Some of those cities are in states marked gray. Their leader, Chris Sgro, uses 100 cities. Whether it is 100 or 200 means that about 10,000 other cities and towns nationwide do not have an ordinance similar to Charlotte’s.

NORTH CAROLINA LAW PROTECTS THE RIGHTS OF LGBT PERSONS. LGBT PERSONS HAVE THE SAME RIGHTS THAT OTHERS DO. Let me explain in detail:

What is discrimination? North Carolina residents have all of the rights that come from the United States Constitution and Statutes, the North Carolina State Constitution (particularly the Declaration of Rights), and Statutes, and local ordinances. These rights are available in full to almost everyone.

Article I Section 1 of the North Carolina Constitution provides as follows:

The equality and rights of persons.

We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.

There are exceptions. Aliens do not have the right to vote, whether here legally or illegally. Children do not have the right to enter into most contracts nor the right to vote nor the right to buy alcohol. Those who by mental disease are not able to conduct their own affairs may be declared incompetent by a Court. Their rights are protected and enhanced by the appointment of a Guardian. Convicted criminals lose some of their rights. But even convicted criminals have the right in most circumstances to not undress or use the bathroom or shower in the presence of a person of the opposite sex.[2]

Each of us has the same rights when facing the same circumstances. For historical reasons the exercise of these rights has been protected by additional constitutional or statutory provisions.

Article I Section 19 of the North Carolina Constitution provides:

Law of the land; equal protection of the laws

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

The 14th Amendment (Section 1) to the United States Constitution provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Private v. Public

Some acts of discrimination are appropriate for private persons but are not appropriate for a government. I may prefer to vacation in the mountains of North Carolina but the government of North Carolina must not say that I must go to the mountains rather than to the beach.

When Romeo met Juliet, he discriminated on the basis of (biological) sex because he chose a particular biological female. When Juliet met Romeo she discriminated on the basis of (biological) sex, choosing a particular biological male. Homosexual or lesbian persons are allowed to exercise private discrimination by choosing a partner of the same sex.

Discrimination based on some factors may be reasonable (like choosing the mountains over the beach). Indeed, a “discriminating” person is defined as one who is discerning, one who notes “differences with nicety,” one who has “excellent taste or judgment.”  But certain types of discrimination are improper for a government or for a provider of public accommodations. These types of discrimination are not allowed by NC law.

Prior to the passage of HB2 the personal characteristics subject to extra scrutiny for discrimination have generally been race, color, national origin, sex (biological) and religion. That was true before the passage of the HB2 and is true today. (Note: other personal traits like age, disability, and familial status are also used where appropriate to the statute.

Proponents of the Charlotte type discrimination ordinance claim that LGBT persons just want the same rights that everyone else already has. This is not true.

WE ALL HAVE THE SAME RIGHTS WHEN CONFRONTING THE SAME SITUATION.

The primary problem with “identity”-based preferences (like “sexual orientation” or “gender identity”) is subjectivity. That subjectivity translates to rule other than by law. The “identity” actor determines the law. The law that codifies the right becomes nothing more than “law cover” for the individual, a tool of individualized empowerment.

“I want to be Cherokee,” said Sen. Elizabeth Warren, whose tenure at Harvard improved its diversity rating. But that did not turn her into a Native American. “I want to be a girl” said the biological boy who won All-State Honors in the 2016 Alaska Girls Track and Field Competition.

IS “SEXUAL ORIENTATION” A REASONABLE AND DEFINABLE TERM TO USE IN DISCRIMINATION LAW. NO. “Sexual orientation” is inherently undefinable and undefined. What is the meaning of the word “orientation?” Is it purely subjective? Is it what is in a person’s mind or does it relate to behavior?

What is meant by “sexual orientation?” Some people, male and female, have the “orientation” or “behavior” of wanting or having more than one sexual partner. For centuries we have had laws against bigamy and polygamy and there are civil consequences for adultery. Those laws are being challenged in some Western states. There are tens of thousands of polygamous marriages in those states that are not being prosecuted. In addition there are millions of Americans who see nothing wrong with polygamy or adultery, either because of their cultural background or their own personal desires.

Extra scrutiny for discrimination on the basis of “sexual orientation” would mean that a job applicant who states to his or her prospective employer or current employer that he or she has a polygamous marriage or is in a polygamous or adulterous living situation, or wishes to have multiple sexual partners, would have extra special rights to be hired or to not be fired. If the desire (or behavior) of having multiple sexual partners is not a “sexual orientation” what could be?

There are many good reasons why an employer might not want to employ a person whose “sexual orientation” is to polygamy or adultery. The employer should have the right to make that decision. Similarly, an employee should have the right to choose to work for those employers who make that very reasonable decision.

“Gender Identity” is not a reasonable or even definable term. President Obama’s Departments of Justice and Education have proven that “gender identity” is purely subjective. While the Trump administration may withdraw the Obama directive, that does not mean that the term now has an objective component. Just ask National Geographic or the Boy Scouts of America who will now determine “sex” based on what is on an application rather than on reality.

In the recent case of G.G. ex rel. Grimm v. Gloucester Cnty. School Bd., No. 15–2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016), “gender identity” was the issue. Judge Niemeyer in dissent pointed out that “gender identity” is entirely subjective as it was applied by the 2-1 majority of the 4th Circuit panel.

On May 13, 2016, the United States Departments of Justice and Education issued a joint letter to public schools nationwide, explaining a school’s obligation under Title IX regarding transgender students and “gender identity.”[3] The letter claimed to rely on Title IX of the Education Amendments of 1972 and stated:

“[g]ender identity refers to an individual’s internal sense of gender.  A person’s gender identity may be different from or the same as the person’s sex assigned at birth…Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex…Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” (emphases added).

This is purely subjective. It is left to the individual to determine whether “he,” “she” or “s(he)” identifies as female or male on a day-to-day basis.

Legal lines are more acceptable when drawn on the basis of benign and immutable characteristics – e.g., race, color, national origin, sex (biological) and disabilities.  Religion is included as a suspect class because of its place in the First Amendment to the U.S. Constitution and Article I Section 13 of the NC Declaration of Rights.

If individuals are allowed to justify and demand acceptance by other private parties of their behavior by wholly self-determined “identity” claims then the law becomes lawless.

To see where this is headed, please see Facebook’s new policy on updating a user’s gender identity on the user’s profile page: https://www.rt.com/usa/236283-facebook-gender-custom-choice/. Facebook offers 58 pre-populated options to choose from OR a user can create and type in the user’s chosen “gender” for the public to see.

HB2 codified the preexisting state law on discrimination and the preexisting state law on local authority. Those wanting to change HB2 have the burden of demonstrating why their proposals are for the public good.

General Assembly: Discrimination and HB2

[1]See http://paulstam.info/wp-content/uploads/2016/05/I-WANT-TO-HELP-PAYPAL.pdf. Also see https://www.aclu.org/map/non-discrimination-laws-state-state-information-map.

[2] The North Carolina Department of Public Safety, Adult Correction and Juvenile Justice stated in a memo on May 10, 2016, that, “Convicted criminals and inmates do have privacy rights when it comes to their using the restroom or changing clothes and they have the right to not be observed by members of the opposite sex while using the restroom or changing clothes. The specific policy language is included in the Prison Rape Elimination Act (PREA), with which the Division of Adult Correction…Community Corrections and Juvenile Justice…abides.”

[3] Available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.