HB2 and a call for UNC campuses to comply with court ruling

On April 5, UNC system president Margaret Spellings sent a memorandum to all UNC system chancellors instructing them to comply with House Bill 2, including the controversial denial of bathroom access to transgender people based upon their gender identity. At the time, it was unclear whether the “bathroom” provision of HB2 was consistent with the federal Title IX amendment of 1972 that protects people from discrimination based on sex in education programs and activities that receive federal funding.

UNC-Chapel Hill Chancellor Carol Folt followed Spellings’ lead in a campuswide email three days later explaining the need to comply with HB2 while also lessening the impact on those who “now feel excluded and unwelcome here and in our state.”

Last week, circumstances changed profoundly following the Fourth Circuit Court of Appeals’ ruling in Grimm v. Gloucester County Public School Board. Gavin Grimm, a transgender student at a Virginia high school, sued his school board because it banned him from the boys’ bathroom. The 4th Circuit deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex.

McGuireWoods – a prominent law firm in Charlotte whose vice chairman John Fennebresque is former chair of the UNC System Board of Governors and Spellings’ patron – stated in a legal alert on its website that “the decision in Grimm marks the first time that a federal court of appeals has held that a transgender student could state a claim under Title IX when he alleges that his school denied him access to the bathroom that corresponds with his gender identity. In addition, implicit in the court’s ruling is the conclusion that a recipient of Title IX funding could violate Title IX and the Department of Education’s regulations when it refuses a transgender student access to the bathroom that corresponds with his gender identity.” The ruling establishes legal precedent in every state in the 4th Circuit, including North Carolina.

Folt, N.C. State University Chancellor Randy Woodson and their peers at 15 other UNC system schools now have the authority and the duty to comply with federal law and open restrooms to people based upon their gender identity. The chancellors can deal a lethal blow to the most pernicious provision of HB2 by enforcing federal law across a 17-campus system having hundreds of thousands of students, faculty and employees. Will they embrace the principled conviction one expects of the highest administrators at institutions of higher learning, or will they remain cowered by a governor and General Assembly that have wielded knife and gavel to weaken post-secondary public education in North Carolina over the past several years?

No doubt Folt and the other chancellors are awaiting top-down approval from Spellings to give them political cover. Whether out of fear, an abundance of caution or self-interest, the fact remains that their schools are violating the legal rights of transgender people. I am uncomfortable waiting for Spellings to huddle with her Republican handlers in Raleigh. With federal law at their backs, it’s time that UNC system administrators showed a little backbone.

This story was originally published April 27, 2016 at 6:00 PM with the headline "HB2 and a call for UNC campuses to comply with court ruling."