The billowing legal fight over North Carolina’s House Bill 2 continued to grow this week with the U.S. Department of Justice asking a federal judge to suspend the law pending the outcome of a trial.
The federal agency sued the state over HB2 on May 9. Late Tuesday night, saying the law is causing ongoing damage to lesbian, gay, bisexual and transgender individuals, a team of Justice Department lawyers asked U.S. District Judge Thomas Schroeder to set aside the law.
The motion for a preliminary injunction is the second filed in Schroeder’s court against HB2. The American Civil Liberties Union sought a similar court order on May 16 as part of its own legal challenge against the state.
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Legal experts give differing estimates on when Schroeder might act. For now, the mounds of paper being filed in the dispute continue to grow, and HB2 shows signs of remaining a pivotal statewide political issue through the November elections.
The law, which requires transgender people in government facilities to use the restroom that matches the gender on their birth certificates, has spawned at least five lawsuits – pro and con – in two federal courts.
The Justice Department’s 70-page legal brief attempts to establish the urgency for Schroeder to act. As with the earlier ACLU argument, government lawyers claim HB2 violates federal anti-discrimination statutes and is causing “ongoing and serious” harm to the state’s LGBT community.
Brian Clarke, a faculty member at the Charlotte School of Law, says it’s highly possible Schroeder has been waiting for the federal government to follow suit so he can rule on both motions at the same time.
“I would be surprised if Judge Schroeder lets this ride for very long,” Clarke said. “Even though the courts don’t have an official clock ticking, a judge does not want an injunctive motion sitting there for months. The legal standard is that irreparable damage is happening now.”
Campbell University law professor Greg Wallace said he expects the Justice Department’s suit to take a slower path, given the November elections. A Donald Trump presidential win, he said, could mean a fundamental change in the government’s policy of including gender identity under federal protection, thus eliminating the government’s complaint.
“I don’t see how these federal judges are going to jump head first into this when in just a few months the presidential election is going to decide whether this policy continues or not,” Wallace said.
Gov. Pat McCrory and the other targets of the Justice Department complaint have three weeks to respond to Tuesday’s filing. Government lawyers would then have two weeks to reply to what the state submits. That means Schroeder could order a hearing on one or both of the HB2 cases by the end of August, perhaps sooner.
Meanwhile, the latest battle in North Carolina’s culture wars continues to command national attention – and legal firepower.
Court filings now list 10 attorneys for the LGBT plaintiffs in the ACLU case. Tuesday’s brief lists 14 Justice Department lawyers assigned to the case. McCrory, a target of two lawsuits and a plaintiff in a third, has six attorneys listed in his behalf.
Attorney General Roy Cooper, the Democratic gubernatorial candidate, is the only defendant listed in court documents without legal representation. He normally would defend the state in such matters but has refused to argue in HB2’s behalf.
Appearing at a Tuesday rally in Charlotte with Democratic presidential candidate Hillary Clinton and incumbent Barack Obama, Cooper again called for the repeal of HB2 and accused McCrory of signing “one of the most discriminatory laws in the country, costing our state hundreds of millions of dollars and thousands of jobs, while hurting our reputation as a beacon in the South.”
McCrory, in turn, describes the law as a “common sense” approach to protect the privacy and security of all residents and calls the Justice Department’s lawsuit “federal overreach.”
McCrory is “appropriately seeking legal certainty to a complex issue impacting employers and students throughout the country,” said Josh Ellis, the governor’s communications director. “In contrast, the attorney general is using divisive rhetoric to advance the Obama administration’s strategy of making laws that bypass the constitutional authority of Congress and our courts.”
The 4th Circuit Court of Appeals, which holds legal sway over the Carolinas and three other states, ruled in April that a Virginia transgender student could sue his school for forcing him to use a special bathroom – in essence upholding the federal government’s right to include gender identity under federal protection.
Wallace says the appeals court ruling did not deal with the “competing privacy interests” of other students and “does not help the ACLU case as much as the ACLU thinks it does.”
Clarke, however, said the decision leaves the North Carolina federal courts little leeway.
“Ultimately, Judge Schroeder will grant the injunction,” he said. “I don’t think he has a choice.”