ACLU announces 2018 lawsuit contesting HB2 law
North Carolina’s years-long legal fight over transgender people and bathroom access came to an end Tuesday, when a federal judge approved a settlement that the governor and LGBT rights groups had proposed.
The settlement says state agencies and universities can’t ban transgender people from using the bathroom of the gender with which they identify. It applies only to public restrooms and similar facilities in state government buildings.
“After so many years of managing the anxiety of HB 2 and fighting so hard, I am relieved that we finally have a court order to protect transgender people from being punished under these laws,” said Joaquin Carcaño, a transgender man and UNC-Chapel Hill employee who is the lead plaintiff in the lawsuit against the state over LGBT discrimination.
After House Bill 2 caused national headlines and boycotts for North Carolina in 2016, Republican lawmakers who had supported it made a deal with new Democratic Gov. Roy Cooper in 2017 to replace it with a new law, which was called House Bill 142.
That replacement law did not fully repeal HB2, although it did notably remove the requirement that people in government buildings must use the bathroom that matches the gender on their birth certificate — a policy which had been called discriminatory against transgender people.
But the challengers in this lawsuit said the replacement law was still too vague. They wanted a federal court to clarify that transgender people in North Carolina can indeed use the bathroom of the gender with which they identify.
Republican lawmakers opposed the lawsuit in court and were able to get some parts of it dismissed — though not that request for clarification — in 2018. And on the bathroom policy, Cooper cooperated with the challengers. The settlement signed Tuesday by federal District Judge Thomas Schroeder made the changes they wanted.
The settlement doesn’t keep legislators from restricting bathroom access through future laws. But it puts new requirements on government agencies and universities that are defendants in the lawsuit.
It says: ”The Executive Branch Defendants, in their official capacities, and all successors, officers, and employees are hereby permanently enjoined from applying Section 2 of H.B. 142 to bar, prohibit, block, deter, or impede any transgender individuals from using public facilities under any Executive Branch Defendant’s control or supervision, in accordance with the transgender individual’s gender identity.”
“Using facilities that match one’s gender identity is a basic necessity for full participation in society, and this order’s confirmation that transgender people can do so is an important victory,” said Tara Borelli, an attorney for the gay rights group Lambda Legal, in a press release after the settlement was announced.
But Tami Fitzgerald, executive director of the conservative Christian group NC Values Coalition, said that the settlement was “like the fox watching the hen house.”
Fitzgerald’s group, which had advocated for HB2, said the judge approving the consent decree changes little in how Cooper approaches the issue.
“But it is kind of ironic that the governor who won’t protect privacy,” she said in an interview, “has now entered into a consent decree that gives up all defense of the case. Instead of defending the lawsuit, the governor has ceded to their demands.”
Bill D’Elia, a spokesman for state Senate leader Phil Berger, said the consent decree “essentially confirms” what has been practice since an executive order from Cooper in October 2017: government agencies under executive branch control would not prevent someone from using a bathroom that aligns with their gender identity.
“Hopefully we can finally put this years-old issue behind us and move forward,” he said.
The settlement, however, ended only part of the case. According to the ACLU of North Carolina, which represented Carcaño and other challengers in the lawsuit, another part of the lawsuit is on hold while the U.S. Supreme Court addresses issues related to workplace discrimination claims by LGBT people.
North Carolina law does not have discrimination protections for LGBT people. The state also made it illegal, through both HB2 and then HB 142, for local governments to pass anti-discrimination rules to protect LGBT people.
That part of the law expires Dec. 1, 2020.
As a result, Ames Simmons, policy director of Equality NC, said that HB2’s “discriminatory effects” remain in place.
“This is a moment of progress,” he said, “but there is much more that needs to be done for trans people’s access to restrooms to be protected.”
Fitzgerald, of the NC Values Coalition, praised the fact that the settlement’s scope is relatively narrow. For instance, she said, it does not cover facilities in schools and other government buildings, where she said such a consent decree would be a “safety risk.”
For Simmons, though, the limited scope also means there’s more work to do.
“Saying that you will not be prosecuted is a very different thing than saying, ‘We will make sure you are safe,’” Simmons said in an interview. “It doesn’t really make people feel confident that they won’t encounter some kind of problem.”
Simmons pointed to an incident in January, in which two women were charged by police after groping a transgender woman at a Raleigh bar.
As a trans man himself, he said he has lived with a fear of such incidents all the time. After HB2 passed, he updated his birth certificate and began carrying it around with him just in case anything happened. He said he had started publicly transitioning about three months earlier.
“There are times that I really get upset with myself, that I thought now was a safe time” to do so, he said, “and I was wrong.”