A federal court ruling in a transgender student’s legal fight in Virginia over school bathroom rights may undercut the defining provision of North Carolina’s controversial House Bill 2, while leaving the state’s education leaders in a quandary:
Whose law do we follow?
With a Carolinas judge leading the way, the 4th Circuit Court of Appeals ruled this week that a Virginia high school student can sue his school board for discrimination because he has been banned from using the boys’ bathroom. Gavin Grimm was born a girl but sees himself as a boy, and says he feels stigmatized by his school board’s policy of forcing him to use a unisex bathroom.
A separate school bathroom based on sexual identity is considered unlawful under the U.S. Department of Education’s Title IX, which bans discrimination in school programs and activities. The federal law says students should have access to bathrooms that match their gender identities, not their biological sex.
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That position was upheld Tuesday by the 4th Circuit’s 2-1 decision, with Judge Henry Floyd, a Brevard native who lives in Pickens County, S.C., writing the majority opinion. Floyd also wrote the court’s decision in 2014 that eventually overturned North Carolina’s same-sex marriage bans.
HB2 requires transgender students to use the bathrooms, locker rooms and public showers of their biological sex unless they have undergone sex-reassignment surgery and changed the gender on their birth certificates. Under the law, universities, colleges and public schools are allowed to establish single-person facilities for transgender use.
Critics say those provisions jeopardize more than $4.5 billion in federal school money. The law also has drawn an array of state and national critics, from political and religious leaders to corporations and the entertainment industry. This week, the British government issued a warning to LGBT travelers about visiting North Carolina.
Meanwhile, legal experts say the 4th Circuit’s ruling adds impetus to an in-state legal challenge to HB2 by the American Civil Liberties Union and other groups.
“Surely we have some fresh wind at our back,” said Chris Brook, the ACLU’s legal director in North Carolina. “We know HB2 is harming the LGBT community in North Carolina today. We are committed to seeking redress for those harms as quickly as possible.”
Brook would not say whether the ACLU and other plaintiffs in the HB2 lawsuit will use the new ruling to get their case before a judge sooner, but added: “We are reviewing all of our options for insuring that the state’s LGBT community doesn’t have to be harmed by HB2 for a day longer than what is reasonable.”
This appeals court decision appears to set the legal debate over HB2 on a familiar path. The 2014 marriage opinion by the 4th Circuit, which has precedent over the Carolinas, Virginia and two other states, was used by advocates to topple bans on same-sex marriage in North Carolina and other states.
Brook predicted a similar outcome for HB2. “The game has played out like this before,” he said.
For the time being, the state’s school leaders have a policy choice carrying significant political and financial implications, said Brian Clarke, a professor at the Charlotte School of Law.
“The only rational choice is to follow federal law,” he said Wednesday. “But every school powers-that-be from (University of North Carolina system President) Margaret Spellings to the Cabarrus County school superintendent must consider compliance against what the political backlash will be. Do you risk the loss of federal funding or face potential political blow-back from the General Assembly? As a legal matter, that is not a position educators should be in.”
Broader privacy challenges in school facilities remain, says Campbell University law professor Greg Wallace. While the 4th Circuit’s ruling is a step forward for transgender rights, “It doesn’t address the larger issue of competing privacy interests” in open locker rooms and showers, he said.
“Anatomical differences are the reason we have separate bathrooms. This is sort of a zero-sum game where one person wins and another person doesn’t. That makes it difficult to balance the different privacy interests. The transgender community wants the law to protect their privacy and comfort but not anybody else’s.”
Asked about the court decision at a Wednesday press conference, state Senate Republican leader Phil Berger described it as troubling, but said the Virginia lawsuit must still be heard by a lower court.
He reiterated his support for HB2, which he called the “Bathroom Safety Bill,” and said most North Carolinians he’s talked to support it.
And, Berger said, he has no plans to repeal it.
Political Writer Jim Morrill contributed.