Protective Orders in Same-Sex Dating Relationships

Samantha S. Erks, JD

Same-sex dating relationships are just like opposite-sex relationships in many respects: meeting, dating, and, hopefully, moving on to something deeper. Sometimes, however, just like in opposite sex relationships, same-sex relationships eventually do not work out. And sometimes, same-sex relationships REALLY do not work out and, just like in opposite sex relationships, things can get scary. When that happens, when someone is threatening or stalking their ex, one would hope that an LGBTQ victim would be able to rely on the courts to protect them through a domestic violence protective order in the same way that a straight victim could. Until this year, however, that was not the case.

According to North Carolina General Statute 50B-1(a), domestic violence is defined as the injuring, attempting to injure, threatening, continually harassing to cause fear, or sexually assaulting a person with whom there is a “personal relationship.” A “personal relationship” involves:

1. current or former spouses,
2. people of the opposite sex who live or have lived together,
3. children and parents (or people acting as parents),
4. two people who have a child together,
5. people who are current or former household members, or
6. people of the opposite sex who are in a dating relationship.

Did you notice a trend there? “Opposite sex” is specified. For people in a same-sex dating relationship without being married, the statute does not provide any protection at all. Thankfully, the Court of Appeals has found that to be unconstitutional, and as of January 1, 2022, those protections are available to all people, regardless of their sexual orientation.

ME and TJ were a lesbian couple living in North Carolina. They were dating but not living together. In May of 2018, ME decided to end the relationship. TJ “did not accept [ME’s] decision,” yelling in ME’s face, tried to force her way into ME’s home, and harassed ME and her friends from multiple phone numbers. When ME went to the courthouse to file for a domestic violence protective order under Chapter 50(B), known in the legal world as a “50B” or a “DVPO,” there was no box for her to check. She filed anyway, and the trial court found that if TJ and ME were of opposite genders, ME would have gotten the DVPO, but since they were not, ME couldn’t qualify for the DVPO.

ME filed an appeal, asking if this discrimination based on LGBTQ status was constitutional. ME’s attorney argued that this was unconstitutional based on Obergefell v. Hodges, which recognized same-sex marriage. After all, how can you recognize gay marriage without recognizing the gay dating that leads up to it? The Court of Appeals took a more complicated approach that invoked the 14th Amendment.

The Supreme Court recently said in Bostock v. Clayton County that discriminating based on LGBTQ status was the same as discriminating based on gender. Courts must consider laws that treat people differently based on gender using “intermediate scrutiny,” which means that the difference must further an important government interest in a way that is substantially related to that interest and is not more restrictive than needed to achieve that interest. The interest of Chapter 50B is to protect victims of domestic violence. The Court said that keeping M.E. from those protections goes directly against that interest, and there is no legitimate governmental reason to exclude LGBTQ people from those protections.

While the statute is still in place as it was written, it is now unconstitutional to apply it in a way that discriminates against LGBTQ people. While I hope that no one reading this ever needs to use it, the LGBTQ community now has one more protection under the law in North Carolina than they did last year, something we can all celebrate.