March 31, 2017 at 7:20 pm EDT | by Chris Johnson
DOJ ‘reviewing its litigation posture’ on HB2 replacement

Jeff Sessions, United States Senate, Alabama, gay news, Washington Blade

The Justice Department under Jeff Sessions (R-Ala.) is reviewing its litigation against HB2. (Washington Blade photo by Michael Key)

In a possible indication the U.S. Justice Department sees the House Bill 2 replacement in North Carolina as an end to discrimination, the department is now reviewing its position on litigation against the initial law filed by former U.S. Attorney General Loretta Lynch, the Washington Blade has learned.

A Justice Department spokesperson said Friday the department under U.S. Attorney General Jeff Sessions is reconsidering its position in the aftermath of North Carolina Gov. Roy Cooper signing into law a replacement for HB2.

“DOJ is reviewing its litigation posture in light of the new law,” the spokesperson told the Washington Blade via email, adding in response to a follow-up question he wasn’t sure when a decision would be reached.

Lynch filed the lawsuit against the anti-trans law in May under the Obama administration, highlighting transgender visibility during a news conference in which she told transgender Americans, “We see you.”

The lawsuit alleged HB2, which barred cities from enacting pro-LGBT ordinances and transgender people from using the restroom consistent with their gender identity, contravenes federal law. The Justice Department alleged the law violated Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and the Violence Against Women Reauthorization Act of 2013.

The deal Cooper signed, House Bill 142, replaces HB2 with a measure that LGBT advocates say is a bait-and-switch attempt giving the appearance of repeal while doubling-down on discrimination.

HB 142 prohibits state agencies, municipalities and the University of North Carolina from the “regulation of access” to bathrooms, locker rooms and showers unless they have the legislature’s permission. It also bans municipalities until 2020 from enacting LGBT-inclusive nondiscrimination measures that would apply to private businesses or public accommodations.

A withdraw of the lawsuit against HB2 in the aftermath of the switch would be consistent with Sessions’ actions against transgender rights since his confirmation as U.S. attorney general. In fact, the Justice Department earlier this month nixed its request for a preliminary injunction against HB2 in favor of an existing injunction against the law that was significantly more limited and applied only to plaintiffs in a separate lawsuit.

Sessions along with Education Secretary Betsy DeVos also withdrew guidance to schools across the country instructing them to allow transgender kids to use the restroom consistent with their gender identity. Under Sessions, the Justice Department also missed a deadline to appeal a court injunction against an Obamacare regulation prohibiting discrimination against transgender in health care, including gender reassignment surgery.

Although the Justice Department may be reviewing its position now that HB2 has been replaced, that isn’t stopping LGBT legal groups who also filed a lawsuit against HB2 from continuing with their challenge.

The trio of groups — the ACLU, ACLU of North Carolina, and Lambda Legal — have declared their lawsuit, which includes claims for the damages inflicted by HB2, will continue, and they’ll seek to amend the lawsuit to challenge HB142 as well.

Peter Renn, senior attorney at Lambda Legal, said if the Justice Department review leads to the withdrawal of its lawsuit, the action will “be yet another example of the Trump administration and Jeff Sessions-led DOJ turning their backs on transgender people.”

“Everyone knows that North Carolina did not actually repeal HB2, and instead enacted a law perpetuating many of the same harms, so the need to protect transgender people’s rights in court hasn’t gone away,” Renn added. “Imagine if a state law was passed that required the state and local government to sit on their hands even if faced with overt discrimination based on race, religion, or disability; it’s hard to imagine the federal government would pack up its tent and go home. Lambda Legal and the ACLU will press forward with litigation challenging North Carolina’s latest turn at the wheel of discriminating against LGBT people, who today remain uniquely vulnerable to the harm of exclusion as full and equal members of society.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

3 Comments
  • This story seems to have escaped the copy editor’s blue pencil. It’s riddled with errors and sloppy syntax. I expect better writing from Johnson.

  • ..American citizens and their children, who today remain uniquely vulnerable to the harm of illegal aliens, identity theft, criminal sexual abuse, murder, and invasion of privacy.

    • keep y our hate and racism against brown people to yourself. Alternatively go to commie russia where it will be a `1000 years before things change for better for the lgbt comminity there

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