According to U.S. District Judge Thomas Schroeder, the Department of Education’s interpretation of Title IX as protecting transgender students supersedes HB2’s restrictions on bathroom usage. He called this conclusion “straightforward,” because a recent Fourth Circuit decision recognizing a Virginia transgender student’s gender identity is the controlling precedent. The two trans plaintiffs in this suit work and study at UNC, and the injunction only applies to them.
The judge explained that prior to HB2’s rushed passage in March, the status quo’s lack of policy restricting bathroom access generally allowed transgender people to use facilities that matched their identity. “Transgender individuals who used facilities that did not match the sex listed on their birth certificate could presumably argue that they believed they had permission to enter facilities that matched their gender identity,” he reasoned, adding that many trans people did have explicit permission to use those facilities. HB2 made such permissions illegal.
UNC, which protects against discrimination on the basis of gender identity, has said that it will comply with HB2, but not enforce it, because it has no enforcement language. Nevertheless, HB2 has changed the policy on campus whether the university likes it or not. “Although UNC has not changed the words and symbols on its sex-segregated facilities, the meaning of those words and symbols has changed as a result of Part I [of HB2], and UNC has no legal authority to tell its students or employees otherwise,” Schroeder wrote.
North Carolina state officials have continued to argue that allowing trans people access to bathrooms infringes on the safety and privacy of other individuals using those facilities, but Schroeder wasn’t convinced that they had provided sufficient evidence to support these claims. In a telling footnote, he spelled out how limited these anecdotes are, and how they don’t change the way North Carolina’s other laws protect people in these spaces:
Defendants did present two news articles describing men in Seattle and Virginia who entered women’s bathrooms or showers. Neither man claimed to be transgender; one was apparently protesting a local ordinance, while the other was arrested for peeping. North Carolina’s peeping and indecent exposure statutes continue to protect the privacy of citizens regardless of Part I, and there is no indication that a sexual predator could successfully claim transgender status as a defense against prosecution under these statutes.
Likewise, state defendants strongly disagreed with the plaintiffs expert declarations that “from a ‘medical perspective,’ gender identity is the only ‘appropriate’ characteristic for distinguishing between males and females,” but the judge saw no evidence from them supporting this disagreement.
Despite this initial victory, Schroeder was skeptical of some of the constitutional claims the trans plaintiffs made. For example, he pointed out that HB2 has no discriminatory impact on significant majority of the population, which means that it could reasonably survive heightened scrutiny in terms of whether it discriminates on the basis of sex. In a sense, he was suggesting that transgender people are not a separate group, but just the very small group that is uniquely impacted by HB2’s restriction that birth certificates determine which bathroom a group uses. He made no final ruling on claims about equal protection or due process.
For Joaquin Carcaño, one of the plaintiffs and a UNC employee, the limited ruling was still a great relief. “Today, the tightness that I have felt in my chest every day since HB2 passed has eased. But the fight is not over: we won’t rest until this discriminatory law is defeated,” he said.
Gov. Pat McCrory’s (R) office, on the other hand, downplayed the significance of the injunction. General Counsel Bob Stephens confirmed in a statement that HB2 is otherwise still in effect. “This is not a final resolution of this case, and the governor will continue to defend North Carolina law.”
Public opinion has increasingly turned against HB2 and against McCrory for supporting it. A Public Policy Polling poll earlier this month found that only 30 percent of North Carolina voters support HB2, while 43 percent are opposed. Additionally, 58 percent agreed that the law is hurting the state. This week, a Monmouth University poll found that 55 percent disapprove of HB2, with 70 percent saying they feel it has been bad for the state’s reputation. Attorney General Roy Cooper (D), who is challenging McCrory in this year’s gubernatorial race, held a 52 to 43 percent lead.
This suit is just one of five pending across the state from both sides of the HB2 debate. Plenty of litigation is yet to come before the fate of the law is finally decided.