The Trump administration’s signal that it may step away from the U.S. Justice Department lawsuit challenging House Bill 2 won’t stop the ACLU and others from pursuing their discrimination claims over North Carolina’s so-called “bathroom bill” through a different lawsuit.
Multiple legal developments in the past few days have left the fate of HB2 in an ambiguous state, even as recent attempts to repeal the law failed in the General Assembly.
A judge has halted proceedings started by the Obama administration that aimed to fully block HB2 while resolution of the Justice Department lawsuit was undecided.
But the 4th U.S. Circuit Court of Appeals scheduled oral arguments for May 10 on one issue raised in a lawsuit filed by three transgender residents, a lesbian law professor at N.C. Central University and lesbian couple in Charlotte.
The schedule was announced the same day the U.S. Supreme Court sent the case of a Virginia transgender teen back to the same federal appeals court for further proceedings.
The country’s highest court decided Monday not to take up the lawsuit filed by Gavin Grimm, a Virginia high school student whose case has been seen as a major test of transgender rights. The decision came after the Trump administration changed the federal government’s position on whether public schools must let transgender students use bathrooms matching their gender identity.
Until then, the courts in the Virginia case had relied on an Obama administration interpretation of Title IX, a 45-year-old federal law governing gender equity in education settings, for the underpinnings of their ruling. Now they will be asked to weigh whether transgender discrimination is a form of discrimination based on sex.
Jane Wettach, an education law specialist at Duke University, said a panel of judges could arrive at the same findings without the guidance that had been issued by the Obama administration.
There are other cases from around the country, Wettach said, that have upheld arguments that a person’s transgender status is an aspect of their gender. Those cases could now play a larger role in the arguments for and against the Grimm case – and by extension, in the case involving North Carolina’s law.
“The 4th Circuit decision will have an impact on HB2,” Wettach said, noting that North Carolina is one of the states in the same federal appeals court circuit as Virginia.
Chris Brook, legal director for the North Carolina chapter of the ACLU, said last week that he and other attorneys had been planning for the Trump administration to withdraw from the Department of Justice lawsuit against North Carolina or change the guidelines that had been the underpinnings of U.S. District Judge Thomas Schroeder’s decision in August to block the University of North Carolina system from enforcing HB2 on its campuses while the lawsuit made its way through the legal system.
The ACLU and Lambda Legal attorneys appealed that ruling, asking the 4th Circuit judges to widen the block on enforcement to the entire state. They also argue that HB2 violates the equal protection clause provided in the 14th Amendment, though Schroeder noted in his August ruling that he had not been persuaded so early in the process that the HB2 challengers would prevail with such an argument.
“The Supreme Court’s decision today doesn’t change the legal protections that transgender people have under Title IX or the Constitution,” Mike Meno, a spokesman for the ACLU of NC, said Monday. “We’re looking forward to making our case against the anti-transgender implications of HB2 in front of the Fourth Circuit in May.”
As that case moves ahead, the Justice Department under Trump has informed Schroeder, who is presiding over both North Carolina cases at the district court level, that it needs more time to consider whether it will remain invested in the challenge of HB2.
Trump has said it should be a state decision about whether Title IX bars discrimination against transgender students, not one for the federal government to decide across the board.
In a joint letter, the top civil rights officials from the Trump Justice and Education departments rejected the Obama administration’s position that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice.
That directive, they said, was devised “without due regard for the primary role of the states and local school districts in establishing educational policy.”