State Politics

HB2 is gone, but lawsuit challenging the old NC law could move ahead in court

House Bill 2 might have been repealed Thursday, but the legal team defending the six North Carolina residents who filed the first lawsuit challenging the law has no plans to back away from the challenge in court.

House Bill 142, the new law adopted in place of HB2 and described as “a compromise” by lawmakers and Gov. Roy Cooper, bars protections for transgender people using restrooms in schools or other state or local government buildings, the attorneys contended in a prepared statement.

The new law, LGBT advocates argue, leaves transgender people in North Carolina without discrimination protections after HB2 put them in the middle of a contentious and high-profile political debate that has been monitored for the past year across the United States and abroad.

HB 142 repeals House Bill 2, creates a moratorium on local nondiscrimination ordinances through 2020 and leaves regulation of bathrooms, showers and changing facilities to state lawmakers, not the universities, community colleges, local school systems and other state agencies that had been setting their own policies.

“This is not a repeal of HB2. Instead, they’re reinforcing the worst aspects of the law,” James Esseks, director of the ACLU LGBT Project, said in a statement. “North Carolina lawmakers should be ashamed of this backroom deal that continues to play politics with the lives of LGBT North Carolinians.”

The ACLU, ACLU of North Carolina and Lambda Legal attorneys announced Thursday the legal team’s intentions to try to amend the lawsuit filed a year ago by a transgender man who works at UNC-Chapel Hill, a lesbian law professor at N.C. Central University, a transgender man who is a student at UNC-Greensboro, a transgender teenage girl who is a student at the UNC School of the Arts and a lesbian couple in Charlotte.

The lawsuit names former Gov. Pat McCrory, the University of North Carolina Board of Governors and the N.C. Attorney General as the defendants in the case. The legislators are not named as a party to the suit.

Efforts to reach attorneys representing the UNC system were unsuccessful Thursday.

It was unclear whether any of the parties named as defendants would move to dismiss the case after the repeal of HB2.

Not only did the challengers argue that HB2 violated their equal protection rights as well as federal gender equity law, they sought damages for harm that they contended the 2016 law put on them.

Simone Bell, southern regional director at Lambda Legal, a firm that fights for LGBT rights, called the legislative action on Thursday “fake repeal.”

“Do not leave our community unprotected in the name of ‘compromise,’” Bell said in a statement.

The path through the federal courts for the lawsuits challenging HB2 and fighting for transgender rights have taken new directions and been subject to scheduling changes several times since President Donald Trump’s inauguration. They also have been affected by a recent U.S. Supreme Court ruling in the case of a Virginia teen whose lawsuit against the Gloucester County schools has been a major test for transgender rights.

The Virginia case awaits a rehearing in the 4th U.S. Circuit Court of Appeals, and the North Carolina challenge of HB2 was also set for arguments at the Richmond-based federal appeals court in early May.

It was unclear Thursday what impact the legislative action would have on the scheduling.

Shannon Gilreath, a Wake Forest University professor of law and women’s gender and sexuality studies, said he did not think the new law adopted in place of HB2 did away with the potential for claims of sex discrimination through sex stereotyping.

“As long as you’re requiring people to use a bathroom based on gender appearance, that argument doesn’t go away,” Gilreath said.

Gilreath used as a comparison the Trump administration’s two travel bans and the underlying reasons behind both that raised the same questions of religious discrimination. A similar case could be made that HB142 was constructed with many of the same principles of HB2, he said.

Gilreath said that while LGBT advocates have roundly criticized HB142 as just as bad as HB2, he pointed out that local anti-discrimination ordinances that had been on the books before the adoption of HB2 were enforceable again after its repeal.

“There are now a lot of people who have returned to some form of civil rights protection by the repeal,” Gilreath said. “If these ordinances were on the books, I would certainly argue that they are enforceable again.”

Anne Blythe: 919-836-4948, @AnneBlythe1