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North Carolina’s anti-transgender law undermined by federal court

Transgender people are not implicitly banned from restrooms that match their identity.

North Carolina Gov. Roy Cooper (D) campaigned on repealing HB 2, but then supported the resulting compromise, HB 142, which maintained a ban on local LGBTQ protections. CREDIT: Photo by Sara D. Davis/Getty Images
North Carolina Gov. Roy Cooper (D) campaigned on repealing HB 2, but then supported the resulting compromise, HB 142, which maintained a ban on local LGBTQ protections. CREDIT: Photo by Sara D. Davis/Getty Images

A federal judge ruled on Sunday that the “compromise” law (HB 142) that repealed North Carolina’s infamous anti-trans law (HB 2) does not inherently ban transgender people from using restrooms that match their gender identity. Further, he concluded that a suit challenging the law’s restrictions on localities establishing nondiscrimination protections can proceed.

The lawsuit dates back to 2016. After the city of Charlotte extended nondiscrimination protections to the LGBTQ community, the North Carolina legislature retaliated by passing HB 2, which mandated that people could only use public restrooms in accordance with their “biological sex.” It also banned other municipalities from passing LGBTQ protections like the ones Charlotte had. The original lawsuit challenged HB 2, and in August of 2016, U.S. District Judge Thomas Schroeder agreed with the plaintiffs — two students and an employee at the University of North Carolina — that Title IX protects them from such mandated anti-transgender discrimination.

Much has changed since that first ruling, however. After a massive backlash, including the NCAA threatening to pull its championship games from the state for several years, the legislature agreed to a compromise that would repeal HB 2. But Republican lawmakers refused to support a clean repeal, so the resulting “compromise” bill (HB 142), passed in March of 2017, maintained stipulations that only the state legislature could pass any law related to who can use certain bathrooms. HB 142 also still upheld a ban on municipalities passing LGBTQ nondiscrimination protections until December 1, 2020.

This left transgender people in a precarious place. The new law didn’t specifically prohibit them from using bathrooms that match their gender identity, as HB 2 had. But neither did it allow for municipalities or public facilities (like UNC) to guarantee their protection if they did use bathrooms that match their identity. If a business owner tried to prevent them from using a bathroom, the law offered no answer about how to rectify that conflict. As such, LGBTQ groups opposed the “compromise,” and the plaintiffs amended their suit to challenge HB 142 instead.

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In his new ruling, Schroeder, a George W. Bush appointee, began to sort out this “legal uncertainty.” He concluded that HB 142’s repeal of HB 2 “returns Plaintiffs to the status quo ante,” and that they are not injured by its stipulation that only the state legislature can regulate restrooms and similar facilities. “Nothing in the language of Section 2 [of HB 142] can be construed to prevent transgender individuals from using the restrooms that align with their gender identity, as Plaintiffs claim some had apparently been doing successfully prior to the passage of HB 2,” he wrote, dismissing related aspects of the complaint.

But Schroeder also ruled that the plaintiffs can continue to pursue a case against Section 3 of HB 142, the part that prohibits municipalities from extending nondiscrimination protections. This “preemption” of local protections “impacts them disproportionately,” he wrote, by limiting their ability to petition for their own rights. “While HB 142 does not prohibit Plaintiffs’ efforts at advocacy, it plainly makes them meaningless by prohibiting even the prospect of relief at the local level.”

He also noted that because local level protections that predate HB 142 remain for other groups (such as on the basis of race, sex, and religion), “Plaintiffs plausibly allege they lack the protections that individuals in other vulnerable groups enjoy.” Schroeder was also suspicious of the fact that lawmakers refused to support a “clean repeal” of HB 2 and instead insisted on including this state preemption provision.

This ruling does not answer all questions for transgender North Carolinians, but the clarification that their bathroom access isn’t limited and the fact that the suit can proceed both bode well.

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Furthermore, North Carolina is not the only state that has passed a preemption law; both Arkansas and Tennessee’s state legislatures have similarly banned municipalities from extending nondiscrimination protections to LGBTQ people. Schroeder’s decision could illuminate legal paths to challenging those laws as well.

LGBTQ groups have praised the ruling, but they maintain that HB 142 continues to harm transgender and nonbinary people.