The University of North Carolina (UNC) has made clear in legal filings that it will not enforce HB2, the state’s law requiring transgender people be refused access to restrooms in accordance with their gender identity. This is a reversal of sorts from the university’s prior position.
After HB2 first became law, UNC President Margaret Spellings announced that the system would comply with it, in that bathrooms and changing facilities would be “designated for and used only by persons based on their biological sex.” This is despite the fact that the university includes — and would continue to include — “gender identity” in its nondiscrimination policy. Her guidance noted, however, that the law “does not contain provisions concerning enforcement of the bathroom and changing facility requirements.” Though students were outraged by the compliance, it seemed that without enforcement, the status quo would not change.
Multiple suits have since been filed challenging HB2, including one filed by two transgender men represented by the ACLU and Lambda Legal who both work or study in the UNC system. The Department of Justice has also sued North Carolina over HB2, arguing that its bathroom restrictions violate federal nondiscrimination protections in employment (Title VII) and education (Title IX). UNC and its Board of Governors were among the defendants in that suit, which threatens to pull federal funding for the university if it violates Title IX.
In a legal declaration filed Friday in the ACLU/Lambda Legal case, Spellings indicated that she will do nothing to enforce discrimination against transgender students. “Pending a final judgment in this case,” she wrote, “I have no intent to exercise my authority to promulgate any guidelines or regulations that require that transgender students use the restrooms consistent with their biological sex.” She also promised that if any trans student or employee complained that they’d been forced to use the wrong restroom, she would investigate to ensure the university’s nondiscrimination policy was not violated.
According to Spellings, there have not been any such complaints since HB2 was enacted.
The threat of losing federal funding might not have been the only factor motivating Spellings’ reversal. Her original guidance depended on a sort of pleaded ignorance; the university would obey HB2, but since HB2 had no enforcement mechanism, UNC wouldn’t really have to do anything. Indeed, many of the state’s police departments have been similarly clueless as to how they would be expected to enforce HB2. Since then, however, Gov. Pat McCrory (R) has clarified how the law should be enforced.
This past Thursday, McCrory explained to reporters that violating HB2 constitutes trespassing. “We’re using trespassing laws that we were using before House Bill 2, we’re using that now,” he said. “But you know, it’s just basic privacy rights and that’s trespassing and we’ll continue to do that just like we were doing long before the Charlotte ordinance. So nothing’s really changed in that regard.”
— Bryan R. Anderson (@BryanRAnderson) May 26, 2016
The Charlotte ordinance the governor referred to was a policy passed by the city of Charlotte protecting LGBT people from discrimination, including in bathrooms. Though dozens of other cities and states have such laws, McCrory and HB2’s other supporters have regularly blamed Charlotte for forcing their hand to respond with a uniquely discriminatory law.
It’s unclear from McCrory’s use of the present perfect progressive tense if there have actually been any arrests under HB2. There have been plenty of arrests related to protests of HB2, but so far there have be no known arrests related to actual bathroom use.
If HB2’s restrictions are ever enforced, it now seems more likely, at least, that UNC’s more than 260,000 students, faculty, and staff will be spared.