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LGBTQ rights in North Carolina

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LGBTQ rights in North Carolina
North Carolina (USA)
StatusLegal since 2003
(Lawrence v. Texas)
Gender identityAltering sex on birth certificate does not require sex reassignment surgery
Discrimination protectionsSexual orientation and gender identity discrimination prohibited in public employment.
Family rights
Recognition of relationshipsSame-sex marriage since 2014
AdoptionYes

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of North Carolina may face legal challenges not experienced by non-LGBTQ residents, or LGBT residents of other states with more liberal laws.

Same-sex sexual activity is legal in North Carolina as a result of the U.S. Supreme Court decision in Lawrence v. Texas, although the state legislature has not repealed its sodomy law. The state has recognized same-sex marriage since October 10, 2014. However, an amendment to a bill prohibiting discrimination against LGBT persons in charter schools has not been signed into law.

Laws regarding same-sex sexual activity

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The U.S. Supreme Court ruling in Lawrence v. Texas (2003) held laws criminalizing consensual homosexual activity between adults unconstitutional.[1]

In State v. Whiteley (2005), the North Carolina Court of Appeals ruled that the crime against nature statute, N.C. G.S. § 14-177,[2] is not unconstitutional on its face because it may properly be used to criminalize sexual conduct involving minors, non-consensual or coercive conduct, public conduct, and prostitution.[3]

The state's sodomy law, though unenforceable, has not been repealed.[4]

Recognition of same-sex relationships

[edit]
Main article: Same-sex marriage in North Carolina

Marriage

[edit]

North Carolina has recognized same-sex marriages since October 14, 2014, when a federal court decision found the state's denial of marriage rights to same-sex couples unconstitutional. The state formerly banned same-sex marriage and all other types of same-sex unions both by statute and by constitutional amendment until the ban was overturned by a federal court decision.

North Carolina had previously denied marriage rights to same-sex couples by statute since 1996. A state constitutional amendment that was approved in 2012 reinforced that by defining marriage between a man and a woman as the only valid "domestic legal union" in the state and denying recognition to any similar legal status, such as civil unions.

Constitutional ban

[edit]
County-level results of the vote on Amendment 1, amending the N.C. state Constitution to ban same-sex marriages and civil unions.

In September 2011, the North Carolina General Assembly passed North Carolina Senate Bill 514 (2011) which put an amendment banning any form of same-sex unions on the primary election ballot in May 2012. The measure passed on a vote of 30–16 in the state Senate and a vote of 74–42 in the state House.[5]

Voters approved the amendment by 61% to 39% on May 8, 2012. North Carolina was the 30th state, and the last of the former Confederate states, to adopt a constitutional amendment banning same-sex marriage. The amendment added to Section XVI of the Constitution of North Carolina:[6]

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

Lawsuits

[edit]
See also: Same-sex marriage in North Carolina § Lawsuits
General Synod of the United Church of Christ v. Cooper

On April 28, 2014, the United Church of Christ and other religious organizations filed General Synod of the United Church of Christ v. Cooper, arguing that North Carolina's statute that makes it a crime to preside at the solemnization of the marriage of a couple that lacks a valid state marriage license unconstitutionally restricts religious freedom.[7] On October 10, District Court Judge Max O. Cogburn, Jr. ruled the state's ban on same-sex marriage unconstitutional.[8]

Fisher-Borne v. Smith and Gerber v. Cooper

On June 13, 2012, six same-sex couples filed a federal lawsuit, Fisher-Borne v. Smith, that initially sought the right to obtain second-parent adoptions. In July 2013, following the U.S. Supreme Court decision in United States v. Windsor in June, they amended their suit to challenge the constitutionality of the state's denial of marriage rights to same-sex couples.[9] Briefing was completed on August 13, 2014.[10] On April 9, 2014, the American Civil Liberties Union filed Gerber v. Cooper in the United States District Court for the Middle District of North Carolina, seeking state recognition of same-sex marriages established outside of North Carolina. Plaintiffs are three couples: Ginter-Mejia and Esmeralda Mejia, Jane Blackburn and Lyn McCoy, Pearl Berlin and Ellen W. Gerber. A judge has not yet been assigned in this case.[11] On October 14, U.S. District Judge William Osteen ruled for the plaintiffs.[12]

Domestic partnership

[edit]
Map of North Carolina counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

The counties of Durham,[13] Orange,[14] Mecklenburg,[15] and Buncombe;[16] the cities of Durham,[17] Greensboro,[18] Asheville,[19] and Charlotte;[20] and the towns of Carrboro[21] and Chapel Hill[22] have established domestic partnership registries.

Hospital visitation

[edit]

In 2008, the North Carolina General Assembly added a provision to the Patients' Bill of Rights affording hospital visitation rights to same-sex couples though a designated visitor statute.[23]

Adoption rights

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Some lower courts allowed second-parent adoptions until the North Carolina Supreme Court ruled 5–2 in 2010 in the case of Boseman v. Jarell that the state law did not permit adoption by a second unmarried person irrespective of the sex of those involved.[24] The plaintiff in that case was Julia Boseman, first openly gay member of the state legislature. On June 13, 2012, 11 same-sex couples sued several state and local officials in federal court seeking second-parent adoption rights.[25] In 2013 they amended their suit to challenge the constitutionality of the state's denial of marriage rights to same-sex couples.[9] On October 14, U.S. District Judge William Osteen ruled for the plaintiffs.[12]

Foster parenting

[edit]

In November 2021, it was reported that the Governor of North Carolina Roy Cooper signed a bill into law legally banning discrimination — explicitly listing sexual orientation within foster parenting placements. The law went into effect from January 1, 2022.[26]

Discrimination protections

[edit]
Further information: LGBT employment discrimination in the United States

State law previously banned local municipalities from prohibiting discrimination on the basis of sexual orientation or gender identity in areas other than public employment, but this ban expired on December 1, 2020.[27][28][29][30][31][32][33]

The counties of Buncombe,[34] Mecklenburg,[35] and Orange[36] and the cities of Asheville,[36] Boone,[36] Carrboro,[36] Chapel Hill,[36] Charlotte,[37] Greensboro,[36][38] Raleigh,[36][39] and Winston-Salem[40] prohibit discrimination on the basis of sexual orientation and gender identity in local public employment. The counties of Durham[36] and Guilford[36] along with the cities of Bessemer City,[36] Durham,[41] and High Point[36] prohibit local public discrimination on the basis of sexual orientation only.

The University of North Carolina system, which comprises North Carolina's 16 public universities, established a policy of non-discrimination with regard to sexual orientation and gender identity in employment and for students,[42] which is now in partially in conflict with the Public Facilities Privacy & Security Act.[43]

Appalachian State University, Fayetteville State University, North Carolina Agricultural and Technical State University, North Carolina Central University, North Carolina State University, University of North Carolina at Asheville, University of North Carolina at Chapel Hill, University of North Carolina at Charlotte, University of North Carolina at Greensboro, and University of North Carolina at Pembroke have established non-discrimination policies that cover sexual orientation and gender identity in employment and admissions.[citation needed] East Carolina University, University of North Carolina at Wilmington, University of North Carolina School of the Arts, Western Carolina University, and Winston-Salem State University have established non-discrimination policies that cover sexual orientation in employment and admissions.[citation needed] Elizabeth City State University is the only public university in North Carolina that has not established a non-discrimination policy in respect to either sexual orientation or gender identity for employees or students.

The North Carolina Housing Finance Agency has a policy which provides "all employees and applicants for employment with equal employment opportunities, without regard to race, color, religion, creed, gender, sexual orientation, national origin, age, disability, political affiliation, or any other protected status".[44][needs update]

On June 26, 2014, the North Carolina House of Representatives passed by a 115–0 vote for an amendment to bill that prohibits discrimination in charter schools on the basis of any "category protected under the United States Constitution or under federal law applicable to the states." The amendment was later removed in the North Carolina State Senate and not included in the final bill signed into law.[45][46][47]

On April 12, 2016, North Carolina Governor Pat McCrory signed an Executive Order outlawing LGBT discrimination in any public employment within the state,[48] though it did not impact the controversial HB2 legislation.[49] In October 2017, Governor Roy Cooper extended this discrimination protection to businesses that contract with the state.[50][51]

Public Facilities Privacy & Security Act

[edit]
Main article: Public Facilities Privacy & Security Act

Passed in March 2016, the law also known as "HB2" prevents local governments from enacting policies contrary to state law in regards to hiring and use of bathroom facilities, and requires all people to use the bathroom of the gender listed on the person's birth certificate. The portion of the law regarding bathroom use based on gender at birth was repealed by the state legislature on March 30, 2017, and signed into law by North Carolina Governor Roy Cooper the very same day.[52]

House Bill 142

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Main article: House Bill 142 (Session 2017 of the North Carolina General Assembly)

Charlotte ordinance

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In August 2021, a local ordinance was passed within the city of Charlotte to explicitly outlaw and ban discrimination on the basis of both sexual orientation and gender identity. It goes into legal effect from January 1, 2022.[53][54][55]

Catholic school case

[edit]

In September 2021, a Catholic school fired a gay teacher back in 2014 and a federal judge ordered that he be reinstated immediately - because legally Catholic schools can't fire gay teachers under federal jurisdiction. This case will possibly be appealed in higher courts (and maybe as far as the Supreme Court of the United States).[56]

Wake County ordinance

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In October 2021, Wake County passed a legal ordinance to explicitly legally ban discrimination on the basis of both sexual orientation and gender identity.[57] About 30% of the North Carolina population is now legally protected from discrimination on the basis of both sexual orientation and gender identity by locally enforced ordinances.

Hate crime law

[edit]

North Carolina's hate crime statute does not cover sexual orientation or gender identity.[58]

Domestic violence protection

[edit]

In January 2021, a federal judge struck down the last US state law — North Carolina — that did not recognise same-sex domestic violence. Domestic violence protection laws are now extended to include same-sex couples.[59][60]

Conversion therapy

[edit]
See also: List of U.S. jurisdictions banning conversion therapy

On August 3, 2019, the North Carolina Governor Roy Cooper signed an executive order within his office - explicitly banning any state funding of conversion therapy on minors. This is the first time a southern US state has done this.[61][62][63]

Transgender rights

[edit]

On August 16, 2023, the legislature voted to override the governor's veto, and three new laws took effect immediately. They govern:[64][65]

  • requiring educators to notify parents if a student requests that they use a different name or set of pronouns
  • trans girls banned playing team sports
  • gender-affirming care for transgender minors banned

Female sports and athletes ban

[edit]

In August 2023, laws were implemented to explicitly ban transgender individuals assigned male at birth from participating in female sports and athletic teams within the state.[66]

Gender identity documents

[edit]

On June 26, 2022, a federal judge ruled that gender-affirming surgery was no longer required for North Carolina changes to the gender marker on North Carolina birth certificates.[67] This was the result of a lawsuit filed by Lambda Legal in November 2021; the lawsuit had complained that the existing law required "sex reassignment surgery" without defining it.[68]

Students and the "Parents' Bill of Rights"

[edit]

Effective August 15, 2023, SB49, known as the Parents' Bill of Rights, was adopted under the guise of fostering increased parental involvement in their children's education and more oversight for educators and their choice of instructional material. The bill includes:

  • A ban on instruction of gender identity, sexual activity, or sexuality in grades kindergarten through fourth grade, regardless of whether the information is provided by school personnel or third parties. Curriculum includes the standard course of study and support materials, locally developed curriculum, supplemental instruction, and textbooks and other supplementary materials, but does not include responses to student-initiated questions.
  • Required notification of a parent if a child requests to go by a different name or pronoun in school records or by school personnel.
  • The right for parents to inspect and object to instructional materials.[69]

Gender-affirming healthcare under 18 ban

[edit]

Since August 2023, minors cannot be prescribed puberty blockers or hormone therapy or receive gender-affirming surgery.[64]

Summary table

[edit]
Same-sex sexual activity legal Yes (Since 2003 under the SCOTUS; Not codified into law yet as of 2020)
Equal age of consent Yes
Anti-discrimination laws in every area Yes/No (Both sexual orientation and gender identity within state government employment only — additionally some cities and counties go much further explicitly banning both sexual orientation and gender identity discrimination in all areas by local ordinances)
Same-sex marriages Yes
Recognition of same-sex couples Yes
Joint and stepchild adoption recognition by same-sex couples Yes
Protects LGBT students from bullying within schools Yes[70]
Lesbians, gays and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes/No (Most transgender personnel allowed to serve openly since 2021)[71]
Transvestites allowed to serve openly in the military No[72]
Intersex people allowed to serve openly in the military X/Yes (Current DoD policy bans "hermaphrodites" from serving or enlisting in the military)[72]
Conversion therapy banned Yes (Since 2019 from state government funding only)[61][62][63]
Right to change legal gender Yes (Does not require sexual reassignment surgery)
Third gender option on drivers licenses No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood Yes/No (3 months deferral period, federal policy)

See also

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References

[edit]
  1. ^ New York Times: "Supreme Court Strikes Down Texas Law Banning Sodomy," June 26, 2003, accessed June 28, 2011
  2. ^ "G.S. § 14-177". Ncga.state.nc.us. Retrieved 2013-12-05.
  3. ^ State of North Carolina v. Gregory Paul Whiteley, Retrieved 15 April 2016
  4. ^ Chibbaro Jr., Lou (April 17, 2013). "Sodomy laws remain on books in 17 states, including Md. and Va". Washington Blade. Retrieved May 24, 2013.
  5. ^ "Senate Bill 514 / S.L. 2011-409". NCGA website. North Carolina General Assembly. Retrieved 13 December 2011.
  6. ^ "Marriage Amendment passes in North Carolina by double-digits," The McDowell News, mcdowellnews.com, 9 May 2012, accessed 9 May 2012
  7. ^ Paulson, Michael (28 April 2014). "North Carolina's Gay-Marriage Ban Is Challenged by Church". New York Times. Retrieved June 4, 2014.
  8. ^ Snow, Justin (October 10, 2014). "Federal judge strikes down North Carolina same-sex marriage ban". Metro Weekly. Retrieved October 10, 2014.
  9. ^ a b "Gay marriage cases in 5 states offer broad view". Washington Post. January 16, 2014. Archived from the original on February 4, 2019. Retrieved January 20, 2014.
  10. ^ "Pending Marriage Equality Cases: North Carolina". Retrieved August 24, 2014.
  11. ^ "GERBER et al v. COOPER et al". Justia.com. April 9, 2014. Retrieved August 23, 2014.
  12. ^ a b "Order Enjoining North Carolina from enforcing marriage bans". U.S. District Court for the Middle District of North Carolina. Retrieved October 14, 2014.
  13. ^ "9:00 A.M. Worksession - Agenda". Durham County Government. September 2, 2003. Retrieved April 4, 2012. In conjunction with the County Attorney's legal opinion that only same-sex domestic partner benefits can be offered to County employees without the violation of the Commissioners' oaths of office, the Human Resources Department has completed the actions necessary to make this offering possible.
  14. ^ "Orange County, NC To Offer Partner Benefits". December 1, 2003. Archived from the original on August 20, 2014.
  15. ^ "North Carolina County Passes Domestic Partner Benefits Despite Defamatory Comments from Commissioner Bill James". Archived from the original (PDF) on October 20, 2020.
  16. ^ "North Carolina Family Policy Council: Buncombe Domestic Partner Benefits". March 22, 2013. Retrieved June 7, 2013.
  17. ^ "Durham Votes to Allow Benefits for Domestic Partners". WRAL-TV. April 7, 2003. Archived from the original on August 20, 2014.
  18. ^ "May North Carolina Local Government Employers Offer Domestic Partner Benefits?" (PDF). University of North Carolina at Chapel Hill. November 2009. Retrieved April 4, 2012. In North Carolina, only Durham and Orange counties, the cities of Durham and Greensboro, and the towns of Chapel Hill and Carrboro offer domestic partner benefits.
  19. ^ "Domestic Partner Registry Available May 2". April 27, 2011. Archived from the original on October 6, 2011.
  20. ^ Charlotte council approves domestic partner benefits, scraps capital plan
  21. ^ "Carrboro Town Code: Chapter 3. Section 3-2.1" (PDF). Archived from the original (PDF) on April 8, 2013.
  22. ^ "Town of Chapel Hill: General Policies". Archived from the original on May 12, 2012.
  23. ^ State ensures gay hospital visitation rights
  24. ^ Family Law Prof Blog, "Second Parent Adoption Struck Down by North Carolina Supreme Court," December 22, 2010, accessed June 15, 2012
  25. ^ New York Daily News: "ACLU sues North Carolina over same-sex adoption ban," June 14, 2012, accessed June 15, 2012
  26. ^ "Several new bills signed into law by Gov. Cooper". 4 November 2021.
  27. ^ Human Rights Campaign: North Carolina Non-Discrimination Law, accessed June 28, 2011
  28. ^ "General Assembly of North Carolina Second Extra Session 2016" (PDF). Retrieved 2019-11-22.
  29. ^ "N.C. Gov Pat McCrory signs into law bill restricting LGBT protections". Archived from the original on 2016-03-24. Retrieved 2019-11-22.
  30. ^ "North Carolina's Controversial Anti-LGBT Bill Explained". ABC News. Retrieved 2019-11-22.
  31. ^ "A Rushed Vote Draws North Carolina Into National Fight Over LGBT Rights". NBC News. 25 March 2016. Retrieved 2019-11-22.
  32. ^ Philipps, Dave (2016-03-23). "North Carolina Bans Local Anti-Discrimination Policies". The New York Times. ISSN 0362-4331. Retrieved 2019-11-22.
  33. ^ "Last vestige of NC's notorious HB2 - ban on local nondiscrimination ordinances - quietly ends". Wral.com. 2 December 2020. Retrieved 2020-12-03.
  34. ^ "Personnel Ordinance" (PDF). Buncombe County, North Carolina. August 7, 2012. Archived from the original (PDF) on October 17, 2013. Retrieved October 16, 2013. Amended 4/16/2013 to include sexual orientation and gender identity
  35. ^ Comer, Matt (October 16, 2013). "Mecklenburg commissioners vote to add transgender protections". Q-Notes. Retrieved October 16, 2013.
  36. ^ a b c d e f g h i j k "North Carolina – Sexual Orientation and Gender Identity Law and Documentation of Discrimination" (PDF). UCLA School of Law. September 2009. Archived from the original (PDF) on November 27, 2014. Retrieved May 25, 2013.
  37. ^ Comer, Matt (December 14, 2012). "Transgender protections added to Charlotte personnel policy". Q-Notes. Retrieved October 16, 2013.
  38. ^ Greensboro first in N.C. to OK sexual orientation, gender identity housing protections
  39. ^ "BREAKING: Raleigh Votes to Protect Transgender Workers". Equality NC. October 21, 2014.
  40. ^ "Anti-discrimination Rules Now Apply to Businesses Inside Winston-Salem". Winston-Salem Journal. August 16, 2021. Retrieved January 11, 2021. The Winston-Salem City Council on Monday approved public accommodation and employment protections for LGBTQ people and members of other protected classes, extending rules to the private sector…
  41. ^ "Recruitment and Selection" (PDF). City of Durham. July 19, 2012. Retrieved May 25, 2013. It is the policy of the City of Durham to assure that equal employment opportunity is afforded to all without regard to ... sexual orientation,
  42. ^ "Policy on Student Conduct". University of North Carolina. February 12, 2010. Archived from the original on 2013-06-16. Retrieved June 26, 2020.
  43. ^ "We're Sorry".
  44. ^ "North Carolina – Sexual Orientation and Gender Identity Law and Documentation of Discrimination" (PDF). UCLA School of Law. September 2009. Archived from the original (PDF) on November 27, 2014. Retrieved May 23, 2013.
  45. ^ "Senate Bill 793". Archived from the original on 2014-08-19. Retrieved 2014-08-19.
  46. ^ "Senate Bill 793 (2013-2014 Session) - North Carolina General Assembly". www.ncleg.gov. Retrieved 2019-11-22.
  47. ^ "Charter school bill loses LGBT protections". Archived from the original on 2014-08-19. Retrieved 2014-08-19.
  48. ^ "McCrory issues executive order on House Bill 2, adds protections for gays and transgender people". CBS17.com. 2016-04-12. Retrieved 2019-11-22.
  49. ^ Graham, David A. (2016-04-12). "Pat McCrory's New Executive Order Doesn't Do Much, but It Shows He's Worried". The Atlantic. Retrieved 2019-11-22.
  50. ^ WITN (18 October 2017). "Cooper signs executive order protecting LGBT residents from discrimination". www.witn.com. Retrieved 2019-11-22.
  51. ^ "NC Gov. Cooper: Governor Cooper Signs Non-Discrimination Executive Order for NC". governor.nc.gov. Retrieved 2019-11-22.
  52. ^ Jason Hanna; Madison Park; Eliott C. McLaughlin (30 March 2017). "North Carolina repeals 'bathroom bill'". CNN. Retrieved 2019-11-22.
  53. ^ Browning, Bil (10 August 2021). "After years of delay & billions of dollars, Charlotte NC finally passes LGBTQ nondiscrimination law". LGBTQ Nation. Retrieved 2021-08-30.
  54. ^ "Five years after abhorrent anti-trans bathroom bill, city passes sweeping LGBT+ protections". 11 August 2021.
  55. ^ Kelley, Alexandra (2021-08-10). "Five years after notorious 'bathroom bill,' Charlotte votes for LGBTQ+ protections". TheHill. Retrieved 2021-08-30.
  56. ^ "Catholic schools can't fire teachers for being gay, federal court rules". 6 September 2021.
  57. ^ "Raleigh joins Wake County in new non-discrimination protections". 20 October 2021.
  58. ^ Human Rights Campaign: North Carolina Hate Crimes Law, accessed June 28, 2011
  59. ^ "LGBTQ people can finally get domestic violence protections in NC, court rules". Charlotte Observer. Retrieved 2021-08-30.
  60. ^ "LGBTQ people now eligible for domestic violence protections in all 50 states". NBC News. 6 January 2021. Retrieved 2021-08-30.
  61. ^ a b "N. Carolina is first in South to ban state funding for conversion therapy". NBC News. 2 August 2019.
  62. ^ a b "NC Gov. Bans Funding for LBGTQ Youth 'Conversion Therapy'". 2 August 2019.
  63. ^ a b "North Carolina Just Defunded Conversion Therapy on Minors". 3 August 2019.
  64. ^ a b Migdon, Brooke (2023-08-16). "North Carolina Legislature overrides vetoes of bills targeting transgender health care, athletes". The Hill. Retrieved 2023-08-19.
  65. ^ Javaid, Maham; Parks, Casey (2023-08-18). "N.C.'s new anti-trans laws sow confusion around gender-affirming care". Washington Post. ISSN 0190-8286. Retrieved 2023-08-19.
  66. ^ "North Carolina Legislature overrides vetoes of bills targeting transgender health care, athletes". 16 August 2023.
  67. ^ "Transgender people in North Carolina no longer required to provide proof of surgery to correct birth certificates". The Hill. 23 June 2022.
  68. ^ Avery, Dan (16 November 2021). "Lawsuit challenges surgery requirement for N.C. Birth certificate change". NBC News. Retrieved 9 February 2023.
  69. ^ "North Carolina Senate Bill 49" (PDF). North Carolina General Assembly. August 16, 2023.
  70. ^ "Movement Advancement Project | Safe Schools Laws".
  71. ^ "Biden reverses Trump ban on transgender people in military". AP NEWS. 2021-04-20. Retrieved 2021-08-30.
  72. ^ a b Military.com (2021-05-10). "Medical Conditions That Can Keep You from Joining the Military". Military.com. Retrieved 2021-08-30.
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