HB2 Replacement Doesn’t Bar Transgender People from Using Restrooms Aligned with Gender Identity, Judge Rules
A federal judge ruled Sunday that a 2017 law replacing the controversial HB2 doesn’t prohibit transgender people from using restrooms and other public facilities that correspond to gender identity.
U.S. District Judge Thomas D. Schroeder also allowed a legal challenge to go forward on one part of the new law, known as HB142. The challenge is to the part of the law which, until Dec. 1, 2020, prohibits local governments from passing any nondiscrimination ordinances regulating public accommodations or private business practices.
“While HB142 does not prohibit plaintiffs’ efforts at advocacy, it plainly makes them meaningless by prohibiting even the prospect of relief at the local level,” Schroeder wrote in his opinion.
House Bill 142 was passed and signed into law last year to replace House Bill 2, which is known mostly for requiring transgender people in government buildings and schools to use restrooms, locker rooms or showers that corresponded to the genders listed on their birth certificates — not the person’s gender identity.
House Bill 2 also established a statewide nondiscrimination ordinance that excluded LGBT people. Another part of the law, later repealed, kept people from filing workplace discrimination lawsuits in state courts.
Republicans in the General Assembly quickly passed HB2 after the Charlotte City Council approved a nondiscrimination policy that allowed transgender people to use public facilities according to gender identity. Republicans argued that HB2 was needed to keep girls and women safe from sexual predators who might take advantage of an ordinance similar to Charlotte’s.
House Bill 2 sparked a national backlash in which several sporting leagues pulled events from the state and musical stars canceled concerts. Some businesses called off expansion plans in the state because of the law. Lawsuits were filed against HB2 in U.S. District Court.
An amended lawsuit set its sights on HB142. Plaintifffs argued that the new law didn’t solve anything and created new problems. They said the law was so vague that transgender people didn’t know if they would be criminally prosecuted for using restrooms that correspond to their gender identity.
Schroeder held a hearing in June in U.S. District Court in Winston-Salem on motions to dismiss that were filed by House Speaker Tim Moore, R-Cleveland and Senate Leader Phil Berger, R-Rockingham. The University of North Carolina system also filed a motion to dismiss.
In his ruling Sunday, Schroeder largely rejected arguments that transgender people were being harmed because of the new law’s vagueness. He said he was not persuaded that transgender people were being harmed because of the new law. He said the new law appeared to return things to the pre-HB2 status quo, when transgender people frequently used restrooms according to gender identity.
But Schroeder also found there were possible equal protection issues with the part of HB142 that prohibits local governments from passing anti-discrimination ordinances. He said the law makes it harder for transgender people to advocate for policy changes that would benefit them.
“It is definitionally the case that a facially neutral law will ‘on its face,’ treat all citizens ‘in an identical manner,'” Schroeder wrote. “But in the instant case, plaintiffs allege that ‘the reality is that the law’s impact falls on the minority.’ It is transgender individuals, not biological-access advocates, who allege denial of the equal protection of the laws.”
Berger and Moore did not have immediate comment on the decision.
Joaquin Carcano, lead plaintiff in the lawsuit, said she was 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.”
“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,” she said in a statement. “Our community has faced so much discrimination because of HB2 and HB142, and this decision will give us more support to defend the rights and basic humanity of our community members across the state.”
Chris Brook, legal director of the ACLU of North Carolina, said the decision lessens some but not all of the harm of HB142 and HB2.
“The court’s decision does not account for the very real injuries LGBT people have faced under both HB2 and HB142, but we will continue fighting for the rights of all LGBT people in North Carolina as this case proceeds. The bottom line is that LGBT North Carolinians deserve to feel secure in knowing that when they go about their daily lives and interact with businesses open to the public, any discrimination they encounter is unacceptable.”