In North Carolina, domestic violence statutes explicitly fail to protect people in same-sex relationships—but an appeal filed earlier this month by the state’s American Civil Liberties Union (ACLU) seeks to change that.
Cases like this involve recognizing that intimate partner violence (IPV) is present—even prevalent—in the LGBTQ community. One study found that, in their lifetimes, 61 percent of bisexual women and 44 percent of lesbians report being a victim of physical violence, rape, or stalking by an intimate partner. That’s much higher than the rate of 35 percent for heterosexual women. Transgender survivors of IPV are also three times more likely to report being stalked than cisgender survivors; trans women in particular are especially vulnerable to sexual and financial vioeln
For gay and bisexual men, the rates are high as well. Thirty-seven percent of bisexual men and 26 percent of gay men reported IPV, compared to 29 percent of straight men. Given this reality, it is all the more important that LGBTQ people receive protection under the law.
This particular case arose when M.E. ended her dating relationship with another woman, T.J. (both identities are hidden in the court filing.) During their relationship, they did not live or have a child together; nor did they get married. When M.E. ended the relationship, she says her ex became physically aggressive and threatened violence. M.E. locked T.J. out of her house and called 911. Her ex hid from the police and, after they had left, attempted to force her way into M.E.’s house. M.E. called the police again, who removed T.J. from the premises.
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T.J. continued to harass and stalk M.E., going to M.E.’s home again and to the residences of her friends. Due to this, M.E. filed a complaint and motion for a domestic violence protection order (DVPO). under North Carolina law. Protective orders, also known as orders for protection in some states, set limits on the behavior of someone who has harmed or harassed an intimate partner—limits such as restricting them from coming near the person they have threatened. They are imperfect tools, as they can be difficult to get and can be ignored by an abuser.
North Carolina’s domestic violence law allows for an order for protection in dating relationships only in certain circumstances: (1) people who are current or former spouses, (2) persons of the opposite sex who live together or did live together, (3) people (of any gender) who have a child together, (4) people (of any gender) who are current or former household members, or (5) persons of the opposite sex who are dating or have been dating.
Because the court determined that M.E.’s situation fell into none of those categories, it denied her motion for a DVPO, leaving her at risk for future violence.
A few days later, in June 2018, M.E. tried again to get a DVPO. It was again denied. The judge who handled that request explicitly found that the underlying facts supported granting a DVPO if M.E. and T.J. had “been of opposite genders.”
The ACLU of North Carolina took over M.E.’s appeal, arguing that “this is a case of textbook unconstitutional discrimination.” And, indeed, it is. The only reason that M.E. can’t obtain protection from T.J. is that she is a woman. Had she been a man in the same situation, she could have gotten a DVPO.
M.E. is also facing what the law calls “associational discrimination.” One of the things at the heart of U.S. law about romantic relationships is the right to associate with whom you wish. That was what underpinned the ruling in Loving v. Virginia, the famous case that struck down laws forbidding interracial marriage. M.E. was punished here because she was associated with a woman, not a man.
Finally, the ACLU argues that the discrimination here was a form of sex stereotyping. Sex stereotyping discrimination occurs when someone is punished because they don’t conform to what people perceive are “proper” gender roles. The courts in recent cases, such as Hively v. Ivy Tech, have pointed out that the ultimate sex stereotype is the belief that women should date only men or vice versa. Here, M.E. was a victim of sex stereotyping discrimination because she was dating a woman.
Under both the federal and North Carolina constitutions, no one can be denied equal protection under the law. When the government passes certain laws that restrict people’s rights, and those laws are challenged, the court examines those laws through varying degrees of scrutiny. The ACLU is arguing that the court should use “heightened scrutiny” because the law affects a “suspect class”: a group of people that has historically faced discrimination according to the courts.
“Heightened scrutiny” requires the government to prove that there is a compelling state interest behind the law and that the law is narrowly tailored to achieve that result. In this instance, then, North Carolina has to show that a law that restricts same-sex partners from access to a domestic violence protection order in situations where an opposite-sex partner would receive that protection serves some very important state interest.
As the ACLU points out in its appellate court filing, North Carolina’s law cannot survive that scrutiny. The government can’t articulate any legitimate interest in refusing to protect LGBTQ people from domestic violence while providing those protections to individuals in opposite-sex relationships.
Unfortunately, North Carolina isn’t the only state that puts LGBTQ people at risk by barring them from receiving the full protection of the law. In South Carolina, unmarried people who are dating or living together must be of the opposite sex in order for one party to get an order for protection, while married people in both opposite- and same-sex marriages can obtain those orders.
Despite advancements in the last decade, legal protections for LGBTQ people remain in peril across the country. And with LGBTQ rights under increasing attack at the national level, it is critical that activists keep working to ensure maximum rights and protections for LGBTQ individuals.