Tuesday, May 10, 2016

Something More To This

On Monday, Attorney General Loretta Lynch announced that the Department of Justice is filing a federal civil rights lawsuit against the State of North Carolina because it has chosen to sue the Justice Department in the dsipute over implementation of HB2.

In her statement Monday, Lynch argued

This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation.  We saw it in the Jim Crow laws that followed the Emancipation Proclamation.  We saw it in fierce and widespread resistance to Brown v. Board of Education.  And we saw it in the proliferation of state bans on same-sex unions intended to stifle any hope that gay and lesbian Americans might one day be afforded the right to marry. That right, of course, is now recognized as a guarantee embedded in our Constitution, and in the wake of that historic triumph, we have seen bill after bill in state after state taking aim at the LGBT community.

She chose also to

speak directly to the transgender community itself.  Some of you have lived freely for decades. Others of you are still wondering how you can possibly live the lives you were born to lead.  But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that  we see you; we stand with you; and we will do everything we can to protect you going forward.  Please know that history is on your side.  This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy – but we’ll get there together.

Lynch seemed to acknowledge that HB-1 is about more than the "T" in LGBT when she stated "This actionis about a great deal more than just bathrooms."  Not so, however, because she added "this is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect hem- indeed, to protect all of us."  She proceeded to indicate nothing at all about the "all of us" she evidently had thrown in as a rhetorical device.

So if you believe HB-1 is about more than bathrooms, AG Lynch did all she could  to dispel your notion. Fortunately, there is law professor Brian Clarke who, Raleigh's CBS affiliate reports, explains

The law states “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based on the public policy expressed herein.”

“In a very hidden way, it eliminated the ability for employees in North Carolina to file claims under state law for employment discrimination on the basis of race, sex, national origin, color and age,” Clarke said, “And that’s a right that North Carolina employees have had since 1982… and it’s gone.”

Clarke said North Carolina is now only one of two states that don’t provide these employment protections.

“Mississippi has never had a state anti-discrimination law. We had one and had one since 1977, but now we don’t anymore. The words are still in the statute book but there’s no way to enforce them,” Clarke said.

Proponents of the law point to the federal protections, but Clarke says the remedy under federal and the old state law were not the same.

“Under federal law you have 180 days to go to the EOCC [Equal Employment Opportunity Commission]. Under North Carolina law, as it existed before HB2, if you were fired based on discrimination you had three years to file that claim. You didn’t have to go to any government agency you just went and filed your claim at the courthouse,” Clarke said.

The old state law also allowed an employee to file within three years versus the federal law that state within 180 days. Also, under the federal law, Clarke explained there are caps on damages up to $300,000. The state law had no cap.

Yet, not onlly is the emphasis-  but virtually all coverage- on the threat to sexual minorities, and only in small part because it is misnamed as the "Public Facilities Privacy & Security Act."  Typical is the summary of the legislation captured in the video (below) from the CBS Evening News, hosted by Scott Pelley.

Typical, also, is the action filed by the Justice Department.  Attorney General Lynch may know something I don't know because I've never been a lawyer, nor even played one on TV, nor have I been a political strategist. For what it's worth, though, it seems North Carolina has enacted a bad law with far-ranging implications, the least of which is the bathroom habits of transgendered people.

Lynch concluded "I want to thank my colleagues in the Civil Rights Division who have devoted many hours to this case so far, and who will devote many more to seeing this through...." Hopefully, "there's something happening here. What it is ain't exactly clear," as Stephen Stills once wrote for his Buffalo Springfield. Otherwise, it's as it appears to be and Houston, we have a problem.

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