University of North Carolina President Margaret Spellings said the school won’t enforce the anti-LGBT law, which prohibits transgender people from using the public restroom in schools and government buildings consistent with the gender identity, in legal filings calling for a stay in the litigation pending before federal court.
“The University has not threatened to enforce the Act’s requirement that the University require individuals to use the restroom or changing facility that corresponds with their biological sex, as listed on their birth certificates,” Spellings writes. “In fact, I have repeatedly cautioned the constituent institutions that the Act confers no enforcement authority on the University or any other entity.”
Spellings adds she’s unaware of any student or employee at the University of North Carolina who has complained about being forced to use a restroom inconsistent with their gender identity, but if that occurred she’d ensure the complaint is investigated to determine if law or university policy was violated.
Further, Spellings says she has no plan to issue guidance prohibiting transgender students from using the restroom consistent with their gender identity.
The legal filings stand in contrast to guidance Spellings, who has an anti-LGBT reputation from her work in the Bush administration, issued last month in which she informed chancellors in the school system to comply with North Carolina’s House Bill 2. In her Q&A guidance, Spelling said the university system “must require every multiple-occupancy bathroom and changing facility to be designated for and used only by persons based on their biological sex.”
Joni Worthington, a University of North Carolina spokesperson, said the university is being consistent in the recent filings and the guidance it issued to chancellors.
“President Spellings restated what she has said all along, which is that we are caught in the middle, and nothing in HB2 addresses enforcement,” Worthington said. “The university has not changed its policies and remains committed to being open and welcoming to individuals of all backgrounds. We do not discriminate on the basis of sex or gender identity.”
The University of North Carolina faced lawsuits for complying with House Bill 2 on the grounds the statute violates Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendment of 1972, which prohibit discrimination on the basis of gender. One lawsuit was filed by U.S. Attorney General Loretta Lynch earlier this month and another lawsuit was filed jointly by Lambda Legal, the American Civil Liberties Union and the ACLU of North Carolina. The lead plaintiff in the case filed by LGBT legal groups is Joaquín Carcaño, a transgender employee at the University of North Carolina, Chapel Hill.
Jay Brown, a spokesperson for the Human Rights Campaign, commended the University of North Carolina for saying it won’t enforce House Bill 2, but added the school must take additional steps and call for repeal.
“While it’s welcome news that UNC won’t be enforcing North Carolina’s vile HB2, the law remains a threat to students, faculty and alumni — not to mention the rest of the state — as long as it is on the books,” Brown said. “Students have a right to learn without fear of discrimination, on or off campus, and university leaders have an obligation to protect them. We hope that university system officials go beyond declining to enforce the law, and join with the majority of fair-minded North Carolinians and the more than 200 business leaders calling for the full repeal of HB2.”
The basis for University of North Carolina’s stay request is another lawsuit pending before the U.S. Fourth Circuit Court of Appeals, Gavin Grimm v. Gloucester County School Board, which was filed by a transgender student in Virginia seeking to use the restroom consistent with the gender identity. Although a three-judge panel on the court has ruled in favor of Grimm, the Gloucester County School Board has sought “en banc” review before the full court. Because Fourth Circuit has jurisdiction over Virginia and North Carolina, the resolution in the Grimm case would impact House Bill 2.
It wasn’t immediately whether the federal judge considering the lawsuit would grant the stay nor whether the school’s clarified position would have an impact on litigation against North Carolina’s House Bill 2. Neither U.S. Justice Department, Lambda Legal nor the American Civil Liberties Union responded to the Washington Blade’s request to comment over the holiday weekend.
For initially complying with House Bill 2, the University of North Carolina may have been violating President Obama’s 2014 executive order prohibiting anti-LGBT workplace discrimination among federal contractors, although no complaint against the school under this directive was publicly filed. For each fiscal year from fiscal years 2010 through 2016, the university won more than $10,000 in federal contracts, which surpasses the financial threshold of having to meet requirements under Executive Order 13672.
Tico Almeida, president of the LGBT group Freedom to Work, said the University of North Carolina’s reversal on the anti-LGBT law demonstrates the value of the executive order.
“There are two distinct ways that President Obama’s historic LGBT executive order can combat discrimination and improve the lives of hardworking LGBT Americans,” Almeida said. “One way is when the Labor Department conducts an investigation, finds anti-LGBT discrimination, and then takes enforcement action. The second way is when a discriminatory contractor, like UNC or ExxonMobil, realizes they are at risk of an enforcement action and they change their policies to avoid the risk of losing lucrative contracts. Either way, President Obama’s executive order combats discrimination, and that’s why our team at Freedom to Work led a strong national campaign for several years leading up to the president’s historic signature.”