Civil rights groups on Monday celebrated developments in a lawsuit that challenges North Carolina’s ban on local nondiscrimination ordinances and questions the state’s stance on transgender people’s bathroom use.
A federal judge partially dismissed an attempt by six LGBT North Carolinians and their attorneys to overturn the law that replaced HB2 — but allowed them to keep challenging the part of that law that bans cities and counties from passing transgender-friendly bathroom rules and other anti-discrimination measures.
That was a blow to state Republican legislative leaders, who had been trying to stop any such challenge.
Aftermath of HB2
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The American Civil Liberties Union, which is representing the six LGBT challengers, announced the news in an email Monday. The ACLU and Lambda Legal had challenged HB2, which drew national boycotts in 2016 over its requirement that people in schools and other government facilities use the bathroom matching the gender listed on their birth certificate.
HB2 was passed as a reaction to the city of Charlotte expanding its nondiscrimination ordinance to cover LGBT people. The blocked ordinance would have allowed transgender people to use the bathroom of the gender with which they identify. (Nondiscrimination policies typically prevent governments and businesses from specifically mistreating people based on their race, religion, gender, gender identity or sexual orientation.)
Then last year, state leaders replaced HB2 with another law that prohibited municipalities from regulating restrooms while also blocking them until 2020 from enacting nondiscrimination policies that go farther than state law.
The ACLU and Lambda Legal challenged the ban on nondiscrimination policies and continued their case against the state’s laws on bathroom access, essentially arguing that the new law is vague and doesn’t explicitly allow transgender people to use the bathroom that reflects the gender with which they identify.
On Sunday night, U.S. District Court Judge Thomas Schroeder gave plaintiffs the green light to move forward with their challenge of the ban on nondiscrimination policies. Schroeder is a George W. Bush appointee.
‘Does not regulate restroom access’
Schroeder on Sunday also dismissed the plaintiffs’ claim that the HB2 replacement still prohibited transgender people from using the bathroom reflecting their gender identity because, he clarified, there is no law blocking transgender people from using a particular bathroom.
“HB142 does not regulate restroom access in any fashion,” Schroeder wrote in his ruling, referring to the replacement law.
Joaquin Carcaño, lead challenger in the lawsuit, welcomed the news.
“I am relieved to finally have the court unequivocally say that there is no law in North Carolina that can be used to bar transgender people from using restrooms that match who we are,” Carcaño said in the ACLU’s email announcement.
“For the past two and a half years, I have been unable to use restrooms in my home state without worrying that I will be subject to discrimination, harassment, or even arrest,” Carcano said. “Our community has faced so much discrimination because of H.B. 2 and H.B. 142, and this decision will give us more support to defend the rights and basic humanity of our community members across the state.”
Tami Fitzgerald, who leads the NC Values Coalition, accused the ACLU of “fanning flames of fear” while attempting to “elevate the rights of transgender people above the rights of the vast majority.”
She also took issue with the notion that there’s no law banning transgender people from using the bathroom of their choice.
“Judge Schroeder’s ruling identifies the real problem with HB142 — that it does not bar transgender people from using restrooms based on their identity,” Fitzgerald said in an email to the N&O. “However, there are other laws that would, and Plaintiff’s characterization of the decision that ‘there is no law in North Carolina that can be used to bar transgender people from using restrooms that match’ how they identify is blatantly false.”
And Judge Schroeder, she said, “is allowing the ACLU to make North Carolina into California.”