From an editorial Wednesday in the (Raleigh) News & Observer:
A federal court has undermined the legality of North Carolina’s HB2 law and raised the prospect that continuing with it could cost the state billions of dollars in federal funds.
On Tuesday, a transgender teenager, Gavin Grimm, with his attorneys won 2-1 support from a three-judge U.S. Fourth Circuit Court of Appeals panel. The majority found that Grimm needs to be heard in court on his suit regarding the fact that he was wrongly banned from the boys bathroom in his rural Virginia high school.
Grimm’s suit had been dismissed by a lower court, but the appeals panel found that he had a valid complaint given the current federal interpretation of transgender students’ rights.
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In January, the U.S. Department of Education’s Office of Civil Rights delivered an opinion that said in part, “When a school elects to separate or treat students differently on the basis of sex ... a school generally must treat transgender students consistent with their gender identity.”
That apparently convinced a Fourth Circuit majority that Grimm had a case. As reported by The News & Observer’s Anne Blythe, Judge Henry Floyd of the Fourth Circuit wrote that, “The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”
This appellate case was first argued in January, but North Carolina’s Republican leaders recklessly did not wait on a ruling. They passed HB2, which overturned a Charlotte City Council decision to allow transgender individuals to use the bathroom of the gender with which they identify. Legislators also prohibited local governments from passing anti-discrimination laws of their own protecting transgender people and gay and lesbian people.
But now, the Fourth Circuit has thrown HB2 into a chaotic legal fight. And the decision might even affect federal funding, billions of dollars, if the state is found in violation of Title IX, the federal law that covers gender harassment and also discrimination.
The court majority sounded emphatic in its ruling, which ought to frustrate the hard-line Republicans in North Carolina who used HB2 as a political weapon in an election year, an issue much like same-sex marriage with which to divide and conquer their opponents. They lost that fight, too, when courts rejected anti-gay marriage amendments as unconstitutional.
The question now is whether North Carolina lawmakers will undo what they never should have passed and repeal the law immediately upon their return to Raleigh next week.