The federal judge who will preside over one of the trials in the challenge of House Bill 2 says the North Carolina law’s transgender challengers are likely to succeed in one of their arguments against HB2.
U.S. District Judge Thomas Schroeder issued a ruling Friday that blocks the UNC system from enforcing the bathroom portion of the controversial law for three transgender residents who have challenged it.
HB2, Schroeder said, “interferes with these individuals’ ability to participate in their work and educational activities. ... As a result, some of these Plaintiffs limit their fluid intake and resist the urge to use a bathroom whenever possible. ... Such behavior can lead to serious medical consequences, such as urinary tract infections, constipation, and kidney disease.”
Schroeder’s 81-page ruling is based on a limited record of evidence — expected to grow immensely in the months before the trial scheduled for November — and on a ruling in a Virginia teen’s case from an appeals court with jurisdiction over North Carolina.
HB2 requires people in schools, universities and other government facilities to use bathrooms matching the gender on their birth certificates. Another part of the law that was not challenged in this lawsuit forbids local governments from passing anti-discrimination laws stronger than state law, which does not explicitly include sexual orientation and gender identity. Since the General Assembly passed it in late March, the law has become a campaign issue and has prompted some businesses and entertainers to cancel plans in North Carolina.
HB2 has prompted at least five lawsuits, including a challenge from the U.S. Justice Department.
The ruling Friday was in a case brought by the three transgender residents, a lesbian N.C. Central University law professor and a lesbian couple in Charlotte. In their request for immediate relief from the law while awaiting trial, they sought to block only the so-called bathroom provision.
The judge’s ruling is an early step in a complex case that also brings constitutional claims dealing with equal protection and due process. 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.
Schroeder ordered UNC to go back to the “status quo” for Joaquin Carcaño, a transgender man who works at UNC-Chapel Hill; Payton McGarry, a transgender man who is a student at UNC-Greensboro; and Hunter Schafer, a transgender girl who attends the University of North Carolina School of the Arts High School in Winston-Salem.
In so doing, Schroeder noted that the attorney for Gov. Pat McCrory, one of the defendants in the case, had said during a hearing earlier this month that transgender residents had probably been using the restrooms that matched their identities, not necessarily what was on their birth certificate, for years and “will continue to use the bathroom that they always used and nobody will know.”
UNC President Margaret Spellings has said the UNC system does not plan to enforce HB2, noting that the law contains no enforcement measures.
But Schroeder noted in his ruling the tenuous situation that UNC finds itself in — being subject to a state law that Justice Department officials contend conflicts with Title IX rules, in another legal challenge that Schroeder is likely to preside over.
“Unless and until UNC openly defies the law, the signs that UNC posts on its bathrooms, showers, and other similar facilities render transgender individuals who use facilities that match their gender identities trespassers, thus exposing them to potential punishment (certainly by other authorities, if not by UNC),” Schroeder said in his Friday ruling. “In addition, if the trespasser is a student, he or she is subject to discipline under one of UNC’s student codes of conduct, which generally prohibit students from violating federal, State, or local laws.”
The 4th U.S. Circuit Court of Appeals has ruled in favor of Gavin Grimm, a transgender Virginia high school student blocked from using bathrooms and locker rooms matching his gender identity. The appeals court cited Title IX, the federal law that prohibits sex discrimination in educational environments, and highlighted the U.S. Department of Education’s interpretation that Title IX covers gender identity.
The 4th Circuit ruling has been appealed to the U.S. Supreme Court.
Critics and advocates of HB2 found something to like in Schroeder’s memorandum opinion, order and preliminary injunction.
“Today is a great day for me and hopefully this is the start to chipping away at the injustice of HB2 that is harming thousands of other transgender people who call North Carolina home,” Carcaño said in a statement. “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.”
Senate leader Phil Berger, a Republican from Eden, and House leader Tim Moore, a Republican from Kings Mountain, issued a statement partially praising the ruling.
“While the court granted a limited injunction for three individuals,” Berger and Moore said in a joint statement, “we are pleased 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.”
HB2 “is still in effect,” McCrory’s general counsel, Bob Stephens, said in a written statement. “... This is not a final resolution of this case, and the governor will continue to defend North Carolina law.”
Though the judge’s ruling on Friday was limited to the three transgender challengers, who said they would suffer “irreparable harm” if HB2 were enforced while they awaited the November trial on their claims, Schroeder noted a lack of evidence from the legislators, governor and UNC officials.
They offered no evidence of anyone being harmed by transgender residents using bathrooms that did not match their birth certificates.
“And although Defendants argue that a preliminary injunction will thwart enforcement of such safety laws by allowing non-transgender predators to exploit the opportunity to cross-dress and prey on others ... the unrefuted evidence in the current record suggests that jurisdictions that have adopted accommodating bathroom access policies have not observed subsequent increases in crime.”
Tara Borelli, a senior attorney for Lambda Legal, which represented the transgender and lesbian challengers, described the partial block of HB2 enforcement as a step in the right direction on a long path.
“We are thrilled that the court put a temporary stop to some of the grave harm HB2 imposes on our transgender clients,” Borelli said in a statement. “This ruling is an important first step to make sure that thousands of LGBT people who call North Carolina home – particularly transgender people – get the privacy, respect, and protections afforded others in the state. As we prepare for trial, we are more determined than ever to ensure equal justice for all North Carolinians.”