North Carolina residents and organizations challenging House Bill 2 asked a federal appeals court to schedule arguments in January on their request to block enforcement of the six-month-old law against all transgender people before their lawsuit goes to trial.
The court filing, submitted Wednesday to the 4th U.S. Circuit Court of Appeals, seeks a broadening of an injunction entered earlier this year by U.S. District Judge Thomas Schroeder.
Schroeder, in late August, said three transgender residents who brought the lawsuit against the governor and legislative leaders had showed they were likely to succeed on their claims that HB2 violated Title IX, the federal law that prohibits sex discrimination in educational environments.
The judge noted a 4th circuit ruling in the case of Gavin Grimm, a Virginia transgender high school student blocked from using the bathrooms and locker rooms corresponding with his gender identity.
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In that case, the appellate panel agreed with the U.S. Department of Education’s interpretation that Title IX covers gender identity.
Though the decision has been appealed to the U.S. Supreme Court, the appellate court ruling governs North Carolina, one of the states in the 4th circuit.
With his ruling, Schroeder blocked the University of North Carolina system from enforcing HB2 against the students and UNC-Chapel Hill employee challenging the law.
The challengers have argued that in addition to violating Title IX, HB2 also is in conflict with equal protection and due process protections guaranteed in the U.S. Constitution.
“HB2 is a law like no other,” the challengers stated in their request to broaden Schroeder's ruling. “No state other than North Carolina has enacted a restriction banning transgender people from using restrooms and other public facilities matching their gender identity. To the contrary, numerous state and local governments have expressly protected transgender people from discrimination across a range of contexts, including in sex-separated restrooms and other facilities. Such protections are of paramount importance.”
In his 81-page ruling in August, Schroeder said from the record he had so far, the equal protection claims did not seem likely to succeed, but he didn’t weigh in on the due process allegations.
“The district court did so based in part on the extraordinary rationale that transgender people are only a small minority of the population,” the challengers stated in the Wednesday court filing. “That is not how the Constitution’s guarantee of equal protection works.”
The trial on HB2 is set for May.
The governor and legislators have argued that HB2 was a public safety measure that also offers privacy protections that they contend would have been eroded by a Charlotte city ordinance.
Lambda Legal and the ACLU argue that such interests can be protected in other ways.
“HB2 makes transgender North Carolinians pariahs in their own state,” said Jon W. Davidson, national legal director at Lambda Legal. "Courthouses, airports, libraries, public schools, highway rest stops, police departments, state hospitals, and the very halls of government itself are now unsafe for, and unwelcome to, transgender North Carolinians. Such unequal treatment simply cannot be squared with the Fourteenth Amendment’s promise of equality under the law.”
Chris Brook, ACLU of North Carolina legal director, added: “Every day that HB2 singles out transgender North Carolinians – whether at school, at work, or just moving through their daily lives – is another day that the transgender community is told that they are second class.”
The law has been a campaign issue in many races. Democrats point to businesses, entertainers and sports tournaments that have canceled plans in North Carolina because of the law. Republicans have described the law as containing “common sense” protections.
Senate leader Phil Berger and House Speaker Tim Moore said in a joint statement in August that they were pleased that Schroeder’s ruling was limited in scope and that it “preserved the commonsense protections to keep grown men out of bathrooms and showers with women and young girls for our public schools and for nearly 10 million North Carolinians statewide.”