A comprehensive history of how North Carolina provided legal rights on the basis of undefined ‘sexual orientation’ and ‘gender identity’
By Paige Fitzgerald
Christian Action League
In July of 2004, the North Carolina State Board of Education adopted a policy of no harassment, bullying, or discrimination towards anyone, and required local school boards to implement this policy. The Board first considered a policy that contained sixteen enumerated classes, including “sexual orientation” and “gender identity/ expression.” Several board members expressed concern, particularly the Board Chairman and former Democratic State Senator, Howard Lee who said, “Bullying is bullying. I don’t care who it’s against and under what circumstances.” The State Board of Education decided not to place the special enumerated cases in the bullying policy.
But with no North Carolina evidence that this policy was not working, on March 11, 2009, Senator Julia Boseman (D-New Hanover) filed the School Violence Prevention Act—Senate Bill 526, otherwise known as the “Bullying Bill,” identical to House Bill 548 by Representatives Rick Glazier (D-Cimberland), Susan Fisher (D-Buncombe), Cullie Tarleton (D-Ashe), and Grier Martin (D-Wake). The name seemed benign to school children, but its primary purpose had nothing to do with the prevention of violence and everything to do with same sex marriage.
For the first time in North Carolina history, a statute would provide legal rights on the basis of an undefined “sexual orientation” and “gender identity.” By making “sexual orientation” and “gender identity” statutory terms, it would now be easier to promote same sex adoptions and marriage. In the Independent Weekly, September 23, 2009, Senator Boseman said, “What’s a big deal for gays and lesbians is that this is the first time in North Carolina that sexual orientation has been written into the law. [The School Violence and Prevention Act] was a huge victory for that…” Here is the background:
Since 2007, the Democratic leadership in the House had attempted to pass the Bullying Bill. The primary sponsor has been Equality NC award-winner Rep. Rick Glazier (D-Cumberland). The House defeated, by one vote, an Amendment offered by Rep. Paul Stam (R-Wake) that would have stripped HB 1366 of the enumerated categories including “sexual orientation” and “gender identity” from the bill. By then cutting off debate on third reading, without any opportunity for amendment, the House leadership succeeded in passing the bill intact.
The Senate Judiciary II Committee then amended it by stripping out the enumerated categories (what Rep. Stam had sought to do unsuccessfully), and the Senate passed the bill without “sexual orientation” and “gender identity” included in the bill. When the bill went back to the House for concurrence, Rep. Glazier moved to send the bill to committee where it died for that year.
In 2008, the House voted not to concur with the Senate’s 2007 changes, so the bill was sent to a Conference Committee which never proposed a solution. Opponents argued for concurrence in the Senate version so that ALL children would be protected from bullying for ANY reason. But the proponents were not satisfied with a Bill that did not include the words “sexual orientation” and “gender identity” and let the bill expire.
In 2009 SB 526 was referred to the Senate Education Committee, but was withdrawn and re-referred to the Senate Mental Health and Youth Services Committee. The Democratic leadership realized that the bill would have more difficulty in the Education Committee, which has 18 Democrats and 11 Republicans than it would in the Mental Health and Youth Services Committee, which is made up of 7 Democrats and 2 Republicans and is chaired by liberal Senator Ellie Kinnaird (D-Orange, Person).
In the Mental Health and Youth Services Committee, the title of the bill was changed from fourteen words to 274 words so that the delineated classes of protected victims, including “sexual orientation” and “gender identity,” were in the title. The effect of such a change was to make the bill unamendable once it reached the House floor, so that, for example, the terms “sexual orientation” and “gender identity” could not be taken out of the bill by a floor amendment. House Rule 31d.
SB 526 was placed on the Senate calendar for May 5, 2009. On the Senate floor, three amendments were offered—one by Senator Boseman, which passed, one by Senator Eddie Goodall (R-Mecklenburg, Union), which was tabled, and one by Senator Phil Berger (R-Guilford, Rockingham), which was thwarted due to a parliamentary maneuver. The “Bullying Bill” passed second reading with a vote of 25 to 22, all Republicans voting against the bill with three Democrats—Senator John Snow (D-Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain, Transylvania), Senator David Hoyle (D-Gaston), and Senator A.B. Swindell (D-Nash, Wilson). Then the bill passed third reading 26 to 22.
The real fight started when the bill reached the House. It was referred to the House Education Committee, chaired by Representative Larry Bell (D- Sampson, Wayne). Senator Boseman and Representative Glazier explained its purpose by misrepresenting three tragic suicide stories. They handed out an article about two students who tragically committed suicide because they were being bullied in school. What Senator Boseman and Representative Glazier forgot to explain was that in the schools where these events occurred, the school already had a policy which specifically enumerated “sexual orientation.”
One Massachusetts boy, Carl Joseph Walker-Hoover was in school in the Springfield school system, which has a policy that maintains “a school environment free of harassment based on race, color, sex, religion, national origin, sexual orientation, age, or disability. Harassment by administrators, teachers, certified and support personnel, students, vendors, and other individuals at school or at school‐sponsored events is unlawful and is strictly prohibited.” Jaheem Herrera, a student at Dunaire Elementary School in Dekalb County, Georgia, also went to a school that adhered to the anti-bullying policy “No Place For Hate”. “No Place for Hate” is a program that enables people to challenge anti-Semitism, racism, homophobia, and all forms of bigotry in their communities and schools. It seeks to provide a model for responding to and preventing acts of hatred and for developing projects that enhance an appreciation for diversity and foster harmony.” No problems with North Carolina’s existing policy were mentioned in the debate.
There were many attempts in the Education Committee to amend the bill to apply equally to ALL students who were bullied for ANY reason. Twice, Representative Paul Stam attempted to substitute the bill with the contents of HB 776, which had 62 sponsors, a majority of the House—“No Bullying Anyone at Public Schools.” This would have made it illegal for ANY bullying or harassing behavior to occur in public schools for any reason. The Committee Minutes for May 28, 2009 states that “There was much debate concerning the School Violence Prevention Act that Chairman Bell set a specific time limit of 11:30 A.M. to vote on the bill. He stated that only those on the previous list would be speaking and no amendments would be entertained.” This refusal to receive and debate amendments is almost unprecedented. From the Education Committee, the bill moved to the Judiciary I Committee which passed it on a vote of 9 to 5, along party lines.
After passing through these two committees, the bill was debated on the House Floor on June 22, 2009. Many amendments were offered to ensure that the bill would be effective and that it would not create new legally protected classes under North Carolina law: “gender identity” and “sexual orientation.” Rep. Stam offered an amendment to clarify that “For purposes of this section, the term ‘sexual orientation’ does not include pedophilia, sexual masochism, or sexual sadism.” This amendment was ruled not to be germane!! He then moved to suspend the Rules to allow the amendment, but it was defeated 52 to 63. By this vote the House majority decided that pedophilia was to be considered as part of the enumerated class of sexual orientation.
Rep. John Blust (R-Guilford) offered an amendment to mandate consequences. “If we’re not going to call for some consequences on bullying then we need to stop puffing up our chests and pontificating on it.” His amendment would have allowed teachers or the administration of a school to use the option of corporal punishment or suspension for bullying. Rep. Thom Tillis (R-Mecklenburg) urged the legislature to pass the Amendment: “Yesterday we heard some really sad stories of children being bullied, now we hear you arguing that these kids who are the perpetrators shouldn’t be subject to corporal punishment or suspension. A lot of bullies are some of the smartest, most athletic kids. Some of them are in varsity sports. And if they know the stakes are raised and they are going to get suspended, it may be a deterrent.” The amendment failed 50 to 65.
Rep. Laura Wiley (R-Guilford) offered an amendment to include those bullied because of gangs, often the most brutal bullying that occurs for school aged children. This amendment was ruled out of order. She moved to suspend the Rules to allow the amendment but it was defeated 50 to 63.
In debate Rep. Stam also explained that although the bill states, “Nothing in this act shall be construed to create any classification, protected class, suspect category, or preference beyond those existing in present statute or case law,” that the bill could still be used to endorse same sex marriage, since the Iowa Supreme Court used similar legislation as reason for its recent decision to overturn Iowa marriage law and to require same-sex marriage. The Iowa General Assembly had passed a “Bullying Bill.” Iowa General statutes 280.28: “Trait or characteristic of the student ‘includes but is not limited to age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status.”
The Iowa Supreme Court in Varnum vs. Brien said on page 40 and 41, “More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10 (credit practices). Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. § 216.18A (“[Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.”). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person’s ability to contribute to society.” On page 38 of the ruling, the Court stated: “The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes to include certain offenses committed because of the victim’s sexual orientation, and by prohibiting ‘harassing or bullying’ behavior in schools based on sexual orientation.” (Emphasis added) Similar arguments have been used to overturn marriage law in California and Connecticut.
Rep. Jonathan Rhyne (R-Lincoln) moved to re-refer the bill to the Education Committee so that the important amendments and questions being brought up could be adequately addressed. “Look at the long caption of this bill, the effect of which is that the bill cannot be amended. The purpose to have a caption that long is to stifle debate, a mini-trend that I find disturbing.” His motion was defeated 57 to 59.
Rep. Hugh Blackwell’s (R-Burke) amendment penalizing teachers who do not enforce the policy failed 54 to 61. It is clear from the amendments ruled out of order and from the failed amendments that the purpose of the bill was not to protect school children but to enumerate special classes.
On second reading, 59 voted in favor and 57 against. There were 7 democrats who voted against the bill: Rep. Van Braxton (D-Greene, Lenoir, Wayne), Rep. William Brisson (D-Bladen, Cumberland), Rep. Jim Crawford (D-Granville, Vance), Rep. Jimmy Love (D-Harnett, Lee), Rep. Tim Spear (D-Chowan, Dare, Hyde, Washington), Rep. Ronnie Sutton (D-Robeson), and Rep. Arthur Williams (D-Beaufort, Pitt). On third reading vote, 58 voted in favor and 57 voted in opposition. Rep. Dewey Hill and Rep. Jamie Boles changed their votes from yes to no. Rep. Ronnie Sutton (D-Robeson) (who previously voted no) and Rep. Brisson were absent and Rep. Warren took a second walk. Speaker Hackney then broke the tie with his vote in favor. There were reports from several Democrat legislators that the Speaker had personally called them to his office or sent them notes on the House floor to ask them to vote for the bill. As soon as the bill had passed, Rep. Bill Owens (D-Camden, Currituck, Pasquotank, Tyrrell) made a clincher motion, which passed 63 to 51 and effectively ended the process. Equality NC explained the passage of SB 526 (June 25, 2009): “Speaker Hackney, his Senior Policy Advisor Laura DeVivo, and Rep. Glazier were instrumental in ensuring passage…”
This bill was one of the most controversial of 2009. For the first time in North Carolina history, “gender identity” and “sexual orientation” are in the General Statutes. The text of the bill, as signed by the Governor, reveals another irony. In 2004 then Lieutenant Governor Perdue, as a member of the State Board of Education had voted against the same enumerated categories when that Board adopted a policy requiring all public schools to prevent bullying anyone for any reason.
The passage of the “School Violence and Prevention Act” is a history that exhibited unwillingness to compromise, unusual rulings, and the use of pressure to get members to change their votes. This paper chronicles these facts.