Analysis: The return of the bathroom bill

Seven years after North Carolina’s legislature kicked off a national outcry over a bill barring transgender people from using the bathroom of their gender identity, state legislatures are at it again.

Republican lawmakers in at least six states — Arkansas, Arizona Idaho Indiana, Kentucky and North Dakota — have introduced measures this year that would require people to use restroom facilities associated with the gender listed on their birth certificates. 

Those bills join legislation that passed in 2021 and 2022 in Alabama, Oklahoma and Tennessee. Lawmakers in Iowa, Minnesota, South Dakota and Texas failed to pass similar bills.

The uproar caused by North Carolina’s legislature when it passed H.B.2 in 2016, the first of the so-called “bathroom bills,” cost the state substantially. The NBA canceled plans to hold the 2017 all-star game in Charlotte, and businesses backed out of planned projects. In all, the backlash could have cost the state up to $3.76 billion over a little more than a decade. 

The Republican-led legislature backed down, passing a compromise that kept in place a temporary ban on any local regulation of “private employment practices” including nondiscrimination ordinances. Gov. Roy Cooper (D) signed the measure in 2017.

What few remember is that North Carolina’s original bill did not arise in a vacuum. It was a reaction to an ordinance passed by the City of Charlotte to protect the rights of gay and transgendered individuals.  

Moreover, in enacting H.B. 2, the state legislature did not simply preempt Charlotte’s ordinance. It also stripped from all local governments the authority to address discrimination entirely, alongside other issues such as regulations of wages, benefits, and leave. 

State law usually preempts local laws, especially if there is a direct conflict. In addition, as “creatures of the state,” the powers of local governments are ordinarily defined by the state, either through state constitutional provisions or general laws. 

But not since the notorious “ripper bills” of the late 19th century — in which state government acted to take power out of the hands of local governments controlled by the opposite party — have state legislature been so eager to revoke local authority previously given, and over such a wide cross-section of issues affecting local residents. 

Rather than allowing diversity among local communities to set their own rules reflecting local preferences and culture, preemptive legislation like H.B. 2 is claiming a growing set of issues as the exclusive province of the state. 

H.B. 2 was only one example of a national trend, most of which received far less attention. Preemption legislation is proliferating in the states, driven by single party leadership and aggressive special interest lobbying. 

Preemption has been applied to block local control of minimum wages and maximum work hours, paid leave, and everything from plastic bag bans to local taxes on sugar-sweetened beverages, with adverse consequences to public health and quality of life, particularly for the poor and people of color. The irony of this type of preemption — termed punitive preemption by legal experts — is that it prevents just the kind of local control and liberty that conservatives claim that they want to encourage.  

In the same year as the North Carolina controversy, the Arkansas Supreme Court struck down a municipal ordinance passed by the City of Fayetteville prohibiting discrimination based on gender identity or sexual orientation. The reason? The Arkansas legislature had passed an expansive preemption bill in 2015 prohibiting any local government from regulating discrimination “on a basis not contained in state law.” 

Fayetteville argued that its nondiscrimination ordinance was not preempted because gender identity and sexual orientation is a “basis” in state laws on bullying and access to domestic violence shelters. This argument prevailed at the trial court level. 

But the Arkansas Supreme Court concluded that the state preemption law was clearly intended to prohibit any expansions beyond the state’s nondiscrimination statute, which does not include gender identity or sexual orientation.

More recently in Virginia, a bill passed in the prior legislative session that was intended to allow formulation of guidelines to protect transgendered and gender nonconforming students was used by recently elected Gov. Glenn Youngkin (R) as the basis for a series of guidelines that will be mandatory in state public schools and will require students to use the rest room of their sex assigned on their birth certificate. 

The guidelines take additional steps relating to sports participation and name changes. Ironically, a Virginia law meant to enhance civil rights protections for roughly 4,000 students out of a statewide student population of 1.2 million was turned against them. 

Legal challenges to Youngkin’s approach are expected to focus on the legislative intent of the original bill, and Youngkin’s potential violation of the Virginia Human Rights Act.   

Advocates for the LBGTQ community are gearing up for the fight, looking to state constitutional civil rights protections and anti-bullying laws. While the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, a federal Title VII case finding civil right protection against discharge from employment based on sexual orientation, may provide some support, there are grounds for concern. 

Many state judges are elected, and the trifecta in state government is increasingly being mirrored on state supreme courts, As the Fayetteville case showed, the prospect for judicial vindication of state constitutional rights may depend more on local attitudes than concern for the rights of vulnerable residents, in states where the worst bullying seems to come from the top.

Meryl Justin Chertoff is an adjunct professor of law and executive director of the Georgetown Project on State and Local Government Law and Policy. She can be contacted at sloglawblog@gmail.com Rick Su is a professor of law at the University of North Carolina School of Law.