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University of North Carolina barred from enforcing HB2

University of North Carolina (Photo by Ildar Sagdejev; courtesy Wikimedia Commons)

A federal court has barred the University of North Carolina system from enforcing a widely condemned state law barring transgender people from using the public restroom consistent with their gender identity.

U.S. District Judge Thomas Schroeder, an appointee of former President George W. Bush, issued the 83-page injunction late Friday on the basis the law, House Bill 2, likely violates Title IX of the Education Amendments of 1972.

“The University of North Carolina, its officers, agents, servants, employees, and attorneys, and all other persons acting in concert or participation with them are hereby enjoined from enforcing Part I of HB2 against the individual transgender plaintiffs until further order of the court,” Schroeder writes.

However, Schroeder writes plaintiffs in the case “have not made a clear showing” they’re likely to succeed in their challenge to the law on the basis it violates the right to equal protection under the U.S. Constitution. Further, the court, Schoroder writes, will reserve ruling on due process claims pending further briefing from the parties.

The judge cites as legal precedent in the case the U.S. Fourth Circuit Court of Appeals ruling in favor of transgender high school students Gavin Grimm, who’s suing his school district for barring him from using the public restroom in accordance with his gender identity. That decision was stayed by the U.S. Supreme Court pending review of an anticipated petition for certiorari from the school district.

“[A]t this early stage on a motion for preliminary relief pending trial, it is enough to say that G.G. requires Title IX institutions in this circuit to generally treat transgender students consistent with their gender identity, including in showers and changing rooms,” Schroeder writes.

Schroeder issues the injunction as a result of a lawsuit filed by the American Civil Liberties Union, the ACLU of North Carolina, Lambda Legal and the D.C.-based law firm Jenner & Block. The lead plaintiffs in the case is Joaquín Carcaño, a 27-year-old transgender employee at University of North Carolina, Chapel Hill.

“Today is a great day for me and hopefully this is the start to chipping away at the injustice of HB2 that is harming thousands of other transgender people who call North Carolina home,” Carcaño said. “Today, the tightness that I have felt in my chest every day since HB2 passed has eased. But the fight is not over: we won’t rest until this discriminatory law is defeated.”

The full trial in the lawsuit against the anti-LGBT law is set to begin on Nov. 14. In addition to hearing challenges against the anti-trans specific portions of the law, the court is set challenges to portions of HB2 barring cities from enacting LGBT non-discrimination protections.

Tara Borelli, senior attorney for Lambda Legal, said her organization is “thrilled” the court put a hold on “some of the grave harm HB2 imposes on our transgender clients.”

“This ruling is an important first step to make sure that thousands of LGBT people who call North Carolina home – particularly transgender people – get the privacy, respect, and protections afforded others in the state,” Borelli said. “As we prepare for trial, we are more determined than ever to ensure equal justice for all North Carolinians.”

Initially, University of North Carolina President Margaret Spellings indicated in a letter to chancellors the school would enforce the anti-trans portions of HB2, but in a later legal filing conveyed the school wouldn’t comply with the statute.

Joni Worthington, a spokesperson for University of North Carolina, said university attorneys are still reviewing the order, but will fully comply with it.

“We have long said that the University has not and will not be taking steps to enforce HB2,” Worthington said. “As President Spellings has emphasized all along, the University has been caught in the middle of a conflict that we did not create between state law and federal guidance. We welcome resolution of these issues by the court so that we can focus all of our efforts on our primary mission — educating students.”

Worthington added non-discrimination on the basis of sex, sexual orientation or gender identity has long been university policy and the school is “committed to being open and welcoming to individuals of all backgrounds.”

Sarah Warbelow, legal director for the Human Rights Campaign, said even though the school has said it won’t enforce the anti-LGBT law, the court order “guarantees that the student plaintiffs will not face negative consequences when exercising their right to use restrooms consistent with their gender identity.”

“Instead of wasting tens of thousands of taxpayer dollars trying to defend the indefensible, Gov. McCrory and state lawmakers should be working towards fully repealing HB2,” Warbelow said. “They should be spending time working on improving education and growing jobs, not defending HB2 and inflicting further harm on the people, reputation, and economy of North Carolina.”

Mara Keisling, executive director for the National Center for Transgender Equality, said the decision is “welcome relief” for transgender students and their families.

“Judge Schroeder rightly recognized that transgender people in North Carolina, and all over the nation, have been using restrooms that match their gender identity without issue – and that HB2 interferes with transgender people’s ability to work and learn and endangers their health,” Keisling said. “The court’s logic applies equally to all public schools and other places where HB2 conflicts with federal civil rights laws. We’re confident that as this case progresses, the plaintiffs will prove that HB2 is illegal, unconstitutional and should be completely overturned.”