State Politics

US Supreme Court’s review of Virginia transgender teen’s case could stall HB2 proceedings

The U.S. Supreme Court decided Friday to take up the case of the Virginia transgender teen who was banned from using the bathroom at his Gloucester County High School that corresponds with his gender identity.

Though the court’s decision could ultimately settle the legality of the so-called bathroom provision of North Carolina’s controversial House Bill 2, those who have challenged the seven-month-old law have raised other legal questions, too.

HB2 not only requires transgender people, and everyone else, to use the public restrooms that correspond to the gender on their birth certificates, it also bars cities, towns and counties from adopting anti-discrimination protections stronger than state law, which does not extend protections based on gender identity or sexual orientation.

All of those issues are not encompassed in the case of Gavin Grimm, the Virginia high school senior who has been barred from using the boy’s bathroom in the Gloucester County schools, at least until the Supreme Court issues a decision next year. The 4th U.S. Circuit Court of Appeals sided with Grimm in April in a ruling that underscored the Obama administration’s interpretation that Title IX, the federal law banning sex discrimination in public schools, protected the rights of transgender students to use bathrooms aligning with their gender identity.

“We are hopeful that the Supreme Court will affirm the sound decision from the Fourth Circuit and recognize the profound harms from rules that ban transgender individuals from using the restroom,” representatives of the American Civil Liberties Union, ACLU of North Carolina and Lambda Legal, an LGBT rights law firm, said in a joint statement released Friday afternoon. “For Gavin and other transgender students who are barred from using appropriate restrooms, every day these exclusionary and discriminatory policies are in place is extremely harmful. We will continue to fight HB2 on behalf of transgender people across North Carolina.”

It was unclear late Friday what immediate impact the Supreme Court’s decision would have on the HB2 lawsuits.

North Carolina falls in the 4th Circuit and is bound by rulings from that court. But by the U.S. justices agreeing to take up Gloucester County’s petition, they could ultimately decide a question that has divided many school districts across the nation.

In Gloucester County’s petition to the country’s highest court, the attorneys argued the 4th circuit ruling on a preliminary injunction in the Grimm case “presents an extreme example of judicial deference to an administrative agency’s purported interpretation of its own regulation.”

Kyle Duncan, an attorney for the Gloucester County school board, said the interpretation was developed by “a relatively low-level official in the Department of Education” without proper public notification or discussion.

After the 4th Circuit ruling, the Obama administration sent out guidance for public schools, a move that sparked a lawsuit filed by several states arguing that the federal government had overstepped its authority.

Carl Tobias, a law professor at the University of Richmond, said it was unclear to him why the justices agreed to take up the Grimm petition when the merits of the case have not yet been argued in the lower courts.

In North Carolina, Tobias said, there could be arguments to put the HB2 lawsuits on hold until after the Supreme Court rules on the Grimm case, which could be many months into 2017.

Nonetheless, Tobias said, the judge presiding over the various HB2 challenges could split off some of the other questions not related to the bathroom provision.

“I think there are other issues in the cases that can proceed,” Tobias said.

Gov. Pat McCrory’s chief legal counsel said Friday evening that the Supreme Court decision to take up the case was in accord with McCrory’s position. “This confirms what the governor has said for the past year that this issue, which is directly related to the Public Facilities Privacy and Security Act, will be decided by the U.S. Supreme Court,” Bob Stephens stated.

Anne Blythe: 919-836-4948, @AnneBlythe1

US justices also accepted NC sex offender case

The U.S. Supreme Court has agreed to take up a North Carolina case that could test the extent to which sex offenders can be barred from Facebook and other social media sites that allow minors to join.

The justices will take up the case of Lester Gerard Parkingham Jr., a registered sex offender in North Carolina who has challenged a 2008 North Carolina law.

The law makes it illegal for a registered sex offender to access a website where he or she knows minors have personal web pages.

North Carolina courts have split on whether the law is too broad and vague, and therefore unconstitutional. The state’s Supreme Court ruled last year, in a 4-2 decision, that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”

Writing for the majority, Justice Robert Edmunds wrote that the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.

Emails and text messages aren’t restricted by the law.

“Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.

N.C. Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague.

They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon.

Staff writer Anne Blythe

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