Plaintiffs seek to expand protections in HB2 injunction to transgender people

The plaintiffs of Carcaño v. McCrory, the case against House Bill 2, appealed an August decision that blocked enforcement of the law’s bathroom provisions only for those involved in the lawsuit on Oct. 19.

Carcaño v. McCrory originated on March 28, five days after HB2 was passed by the N.C. General Assembly. The case was filed by the American Civil Liberties Union, Lambda Legal, ACLU of North Carolina and Equality North Carolina and is expected to go to trial May 2017.

In the meantime, the United States District Court for the Middle District of North Carolina ruled in August to grant the plaintiff’s request to block the law’s bathroom provisions — but only for the three transgender plaintiffs, who all either work for or attend UNC-system schools.

According to the court’s opinion, written by district judge Thomas Schroeder, the bathroom portion of HB2 requires people to use restrooms designated for their biological sex.

Mike Meno, spokesperson for the N.C. ACLU, said the court order prevents UNC from enforcing HB2 on the plaintiffs.

“We were asking for that provision of the law to be blocked entirely because it’s unconstitutional, because it violates federal law like Title IX and because it is harming transgender people in North Carolina every day that it’s on the books,” Meno said.

Title IX prohibits discrimination on the basis of sex in federally funded schools.

Schroeder agreed in his opinion HB2 might violate Title IX. However, he also said the plaintiffs have not proved the provisions are unconstitutional.

Meno said the plaintiffs are thrilled a federal court recognized the harm HB2 is causing the two UNC-system students and the system employee, but are disappointed in the scope of the ruling.

“But it’s unfortunate that ruling didn’t extend to harm the law inflicts on other transgender people who need to use restrooms and other facilities in public buildings across North Carolina,” he said.

Maxine Eichner, a professor at the UNC School of Law, said there is a strong case HB2 violates federal law and is unconstitutional.

“There are many many instances in which courts have granted preliminary relief more broadly than to the plaintiffs of the case when the court believes a law was unconstitutional,” she said. “In fact, I think it is more often than not that courts in those situations have granted broader relief than relief simply to the plaintiffs.”

Eichner said the April decision by the 4th Circuit Court, the same court that will hear the appeal, in the case of G.G. v. Gloucester County School Board might be helpful in predicting the outcome of Carcaño v. McCrory.

The case involved G.G., a transgender boy who was banned from using the boys’ restrooms at his high school.

The court ruled in his favor and stated it is unlawful to prevent a transgender student from using the restroom that matches their gender identity. Eichner said the Supreme Court has yet to decide if it will review this case.

Meno said HB2 is one of many challenges to LGBT rights nationally post-marriage equality.

“But we’ve seen tremendous strides being made for LGBT equality all across the nation and we are very confident that HB2’s days are numbered,” he said.

@cjfarris21

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