A federal judge in Texas potentially has deepened the legal fight over House Bill 2 by blocking an Obama administration order that would give transgender students in public schools access to bathrooms and locker rooms matching their gender identity.
The ruling by U.S. District Judge Reed O’Connor deals a second setback to the government’s argument that Title IX anti-discrimination protections apply to transgender students. It also moves the battle over transgender rights one procedural step closer to a showdown in the Supreme Court.
The impact in North Carolina, home to a series of court fights over HB2, is unclear. O’Connor said his opinion “should not necessarily interfere with litigation currently pending before other federal courts on this subject regardless of the state law.”
Nonetheless, GOP defenders of HB2 are almost certain to cite the ruling in their legal fights against efforts by the federal government, the American Civil Liberties Union and other groups to overturn the controversial law. HB2 pre-empted an amended Charlotte ordinance that would have expanded protections for LGBT residents. The state law requires people in government-run facilities to use bathrooms that match the gender on their birth certificates.
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O’Connor’s order, which comes in a lawsuit filed by Texas and 12 other states over the Obama administration’s transgender directive, blocks enforcement of that directive while the lawsuit is being decided. Legal experts say it almost certainly will be appealed. Last year, O’Connor granted an order that temporarily blocked federal rules expanding medical leave benefits to some gay couples.
The states sued the federal government after the Justice Department threatened to withhold education money from states that did not comply with the transgender order. North Carolina receives about $5 billion in federal school payments each year. Texas gets twice that amount.
O’Connor sided with the states’ argument that the federal government had exceeded its authority by expanding Title IX to include transgender rights without going through the proper federal rule-writing process.
His ruling complicates the legal landscape regarding bathroom access just as millions of students in North Carolina and other states begin a new school year.
Chris Brook, legal director for the state ACLU, called the Texas decision “disappointing,” but said it will have little bearing on North Carolina’s court fights.
“The district court in Texas expressly recognized that its decision should not interfere with other pending federal court cases on this issue,” he said Monday. “HB2 continues to harm our clients and all transgender North Carolinians, and we are looking forward to a decision on our request to have the anti-transgender provisions of this law blocked while our case proceeds.”
Both the U.S. Justice Department and the ACLU have asked the federal courts to block enforcement of HB2 while their lawsuits play out.
In April, the 4th U.S. Circuit Court of Appeals backed the federal government’s argument that requiring a Virginia transgender student to use a special bathroom violates federal anti-discrimination law.
But earlier this month, the Supreme Court blocked that appeals court order from being enforced while it decides whether to hear an appeal from the student’s school district. It takes four votes on the high court to accept a case, but five votes to overturn an appeals court ruling.
Charlotte attorney John Wester, who has argued before the Supreme Court but who is not involved in the HB2 fights, said the justices agree to hear a case when it has extraordinary national importance or there are conflicting opinions at the appeals court level. Either could apply here.
“I keep thinking about an old Roy Orbison song, ‘Too Soon to Know.’ We’re a long way from learning where these things stand,” Wester said.
O’Connor’s ruling, however, directly conflicts with the 4th Circuit’s opinion. If the Texas judge rules, as expected, against the government in the lawsuit by the states, and that ruling is upheld by the traditionally conservative 5th Circuit Court of Appeals, a classic “split circuit” scenario would arise.
“Then the Supreme Court would have every incentive to get involved,” said Brian Clarke, an employment law specialist with Western Carolina University.
Campbell University law professor Greg Wallace says the Texas ruling strengthens the case for Gov. Pat McCrory, Senate leader Phil Berger and the other Republican defenders of HB2. He says the Texas judge found that the Obama administration’s interpretation of Title IX “undermines the bodily privacy that the regulation was designed to protect.”
In a massive legal filing last week, lawyers for North Carolina GOP leaders cited the Supreme Court decision in the Virginia case in arguing against a preliminary injunction against HB2. The response says the court should not grant an injunction when the 4th Circuit’s ruling has been put on hold and a binding Supreme Court decision on transgender protections is likely.
To block HB2 now would “inflict upon North Carolina’s citizens a substantially increased risk of privacy violation and sex crimes,” state leaders argued.
They also accuse the federal government of advancing “the staggering proposition” that sex in federal law is defined “as a person’s internal sense of being male or female.”
Republican leaders also seized upon the Sunday ruling to slam Attorney General Roy Cooper, the Democratic nominee for governor, who has refused to defend HB2 in court.
“The Texas attorney general is doing more to protect North Carolina children than ... Roy Cooper,” said state GOP Executive Director Dallas Woodhouse. “Roy Cooper should stop pushing the Obama administration’s extreme radical social agenda, and instead he should show up for work.”
In the past, Cooper has called for the repeal of HB2 and accused McCrory of signing “one of the most discriminatory laws in the country.”
On Monday, Cooper campaign spokesman Ford Porter criticized McCrory and other Republicans who “use this issue to increase fear and division.”
“This law has damaged our reputation and cost us thousands of jobs and hundreds of millions of dollars,” Ford said. “It's time for Gov. McCrory to drop the ugly rhetoric and stop playing politics with our state.”
The ACLU lawsuit against the law goes to trial in November, only days after North Carolina voters choose their next governor.
The Associated Press contributed.