October 1, 2018 at 7:53 pm EDT | by Chris Johnson
Judge rules HB2 deal doesn’t impair bathroom access for trans people

North Carolina Gov. Roy Cooper took actions aimed at alleviating anti-LGBT discrimination in North Carolina. (Washington Blade file photo by Michael K. Lavers)

A federal judge has allowed a lawsuit against the compromise over North Carolina’s anti-LGBT House Bill 2 to continue, but found the new law doesn’t inhibit bathroom access to transgender people in the state.

U.S. District Judge Thomas Schroeder, a George W. Bush appointee, ruled Sunday night the challenge to House Bill 142 can proceed in so far it pertains Section 3 of the law, which prohibits municipalities from enacting ordinances regulating private employment practices or regulating public accommodations until December 1, 2020.

“While HB142 presents the same barrier to anyone else seeking a protective ordinance as it does to transgender individuals, plaintiffs observe that transgender individuals have a greater need for protective ordinances than other groups,” Schroeder writes. “This is because protective statutes and ordinances that preexist HB142 — such as Charlotte’s ordinance prohibiting discrimination on the basis of race, color, religion, national origin or sex — continue to be valid. Thus, plaintiffs plausibly allege they lack the protections that individuals in other vulnerable groups enjoy.”

But Schroeder doesn’t allow the lawsuit to proceed regarding Section 2 of the law, which bars state agencies and colleges from “regulation of access” to restrooms and locker rooms.

“While plaintiffs are correct that Section 2 prevents state entities like UNC from regulating access to restrooms, the court is unpersuaded that the mere provision of separate male and female facilities is regulation of restroom access, in the relevant sense,” Schroeder writes.

As a result, Schroeder finds plaintiffs in the case “fail to state a claim based on Section 2, but succeed in stating a claim based on Section 3.”

HB142 was signed into law last year by North Carolina Gov. Roy Cooper as a result of a compromise with Republican lawmakers seeking to ease the burden of economic boycott on the state over HB2, which barred transgender people from using public restrooms consistent with their gender identity and cities from enacting pro-LGBT ordinances. Former Gov. Pat McCrory signed HB2 into law, then was voted out of office that year.

The new law prohibits municipalities from enacting ordinances regulating private employment practices or regulating public accommodations until December 1, 2020 and bars state agencies and colleges from “regulation of access” to restrooms and locker rooms.

Although major economic boycotts were curtailed with HB142 in place, LGBT rights supporters continued to object on the basis the law continued to undermine LGBT rights and stigmatize transgender people.

The lawsuit against the statue, Carcaño v. Cooper, was initially filed by the American Civil Liberties Union and the LGBT legal group Lambda Legal when HB2 was on the books and was later modified to challenge against HB142 when the compromise was reached.

Attorneys for these groups hailed the decision as a victory even the judge ruled against allowing their claims against the portion of the law pertaining to bathrooms to proceed.

Chris Brook, legal director for the American Civil Liberties Union of North Carolina, said in a statement the decision “lessens some of the harm that has been caused by these laws’ disgraceful and indefensible attacks on LGBT North Carolinians.”

“The court’s decision does not account for the very real injuries LGBT people have faced under both HB2 and HB142, but we will continue fighting for the rights of all LGBT people in North Carolina as this case proceeds,” Brook said. “The bottom line is that LGBT North Carolinians deserve to feel secure in knowing that when they go about their daily lives and interact with businesses open to the public, any discrimination they encounter is unacceptable.”

Tara Borelli, counsel for Lambda Legal, said in a statement the decision assures transgender people have access to the restrooms in North Carolina.

“In light of this ruling, there should no longer be any excuse for discrimination in government facilities against transgender students and employees, who are simply trying to get through daily life like everyone else,” Borelli said. “HB 142 and HB 2 no longer provide a fig leaf for denying transgender people equal dignity and access to public facilities on the same terms that all other North Carolinians can take for granted.”

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

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