The Trump administration’s planned rollback of federal protection for transgender students could cripple the court fight against House Bill 2 and make a political compromise to rescind the controversial North Carolina law even harder to achieve, legal and political experts say.
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Up to now, the American Civil Liberties Union and other HB2 critics have had an important partner in the fight to have the controversial law thrown out.
Both the Departments of Justice and Education under President Barack Obama argued that the right of transgender students to use the bathroom that matched their gender identity was protected under federal anti-discrimination laws.
The Obama Justice Department, under then-Attorney General and North Carolina native Loretta Lynch, sued the state in May, claiming HB2, which requires transgender individuals to use the public bathroom matching the gender on their birth certificate, violates Title IX of the Civil Rights Act. Lynch also threatened to withhold billions of federal dollars if schools, colleges and universities in North Carolina and other states did not comply with federal transgender policy – setting off a national firestorm and a multi-state lawsuit.
This week, the Trump administration is expected to notify schools nationwide that it will no longer support Obama’s transgender policy.
That change not only undercuts the federal government’s 2016 lawsuit against HB2, it eliminates a key argument in the legal fight by HB2 critics.
“The (federal) lawsuit brought against North Carolina almost certainly will be dismissed,” says Greg Wallace, a Campbell University law professor who has followed the HB2 fight from the start.
The ACLU lawsuit on behalf of transgender North Carolinians can continue for now, he said. “But their case just got a lot more difficult because they don’t have the Obama administration’s favorable interpretation (of sex-discrimination laws) to support their arguments.”
The policy change also appears to undermine a ruling by the 4th Circuit of Appeals last April that sided with a Virginia transgender high school student who had been forced to use a special bathroom. The appeals court decision relied heavily on the Obama administration’s interpretation of federal discrimination law.
That case is scheduled to be heard by the Supreme Court next month. LGBT advocates had hoped that the high court would issue a landmark ruling in support of transgender rights. Now, given the policy change signaled by the Trump administration, the legal experts contacted by the Observer on Wednesday said it’s more likely the justices will “punt” the case, sending it back to the lower courts for further review.
The 4th Circuit’s previous transgender ruling served as precedent in the North Carolina courts. In August, U.S. District Judge Thomas Schroeder of Winston-Salem blocked the University of North Carolina system from enforcing HB2, citing the appeals court ruling. But the judge said the attorneys from the ACLU and other HB2 critics had failed to make “a clear showing” that they would succeed on their claims that the law also violates the 14th Amendment’s due-process and equal-protection clauses.
That leaves the HB2 critics in a weakened legal position, says Maxine Eichner, a UNC-Chapel Hill law professor who specializes in LGBT issues.
Without the Obama administration’s “guidance” on discrimination policy, federal law “is much less clear” on transgender protection, she said. That leaves the legal challenges to HB2 “with a much less certain conclusion.”
Brian Clarke, an employment law specialist at Western Carolina University and HB2 critic, puts it more bluntly.
“I think it will be a difficult argument to make that ‘sex’ and ‘transgender’ are the same” without the support of the federal government, he said.
Chris Brook, state legal director for the ACLU, said courts around the country have ruled that sex- and workplace-discrimination laws protect transgender people. The Supreme Court could do likewise, he said, regardless of the federal policy at the time.
“We believe, and the courts have held, that Title IX’s prohibition of discrimination on the basis of sex is best read to include a prohibition of discrimination against transgender individuals,” he said.
The Republican-led General Assembly passed the law in March in response to the Charlotte City Council’s approval of enhanced LGBT protections, which included transgender bathroom rights.
The law rescinded Charlotte’s amended ordinance, required transgender people to use the public bathrooms that matched the birth gender, and blocked local governments from including the LGBT community as a protected class.
The law drew international repudiation. The economic impact from the loss of jobs, new industries, canceled concerts and sporting events is estimated at $600 million and climbing. Polls now show a majority of North Carolina residents oppose the law, but a December compromise brokered by incoming Gov. Roy Cooper to rescind HB2 collapsed at the last minute with further recriminations. Likewise, a second compromise presented by Cooper this month went nowhere.
Legislative leaders, who say the law protects privacy and public safety, did not respond to Observer requests for comment.
On Wednesday, two Republicans and two Democrats introduced a new bill that would repeal HB2 and prohibit cities and counties from regulating public bathroom access. It also would include a statewide anti-discrimination law that doesn’t mention sexual orientation or gender identity. Chris Sgro, executive director of Equality N.C. and a advocate for a full HB2 repeal, called the bill a “trainwreck.”
Cooper spokesman Ford Porter said the issue of transgender bathroom rights will be decided by the Supreme Court. “In the meantime, we should repeal HB 2 and remove discrimination from our law here in North Carolina,” he said.
Not likely, says Michael Bitzer, a political scientist at Catawba College. With the legal position against HB2 possibly weakening, both sides of the HB2 issue will become more wary, he said.
Added Wallace: “It takes considerable pressure off the General Assembly to modify or repeal HB2 if the threat of legal invalidation of the law is removed.”
Meanwhile, Brook and other lawyers are expected to appear before the 4th Circuit in May to argue that HB2 is unconstitutional.
“Regardless of what happens ... with the Trump administration,” Brook said, “our case will go forward.”