HB2 partial repeal leads to changes in Department of Justice lawsuit

Organizations involved in the legal fight against controversial House Bill 2 are considering their options after the bill’s partial repeal last month.

The U.S. Department of Justice dropped its lawsuit against the state for HB2 Friday morning, citing the passage of House Bill 142.

But Lambda Legal, the American Civil Liberties Union, the ACLU of North Carolina and Equality NC plan to continue their joint pending lawsuit against the state.

Rep. Graig Meyer, D-Orange, said he was not surprised to hear the federal government withdrew.

“I think that House Bill 142 includes the repeal of House Bill 2, so going forward on the lawsuit would have to be because of the new provisions of House Bill 142, which are significantly different from what was in House Bill 2,” he said.

A joint press release from Lambda Legal and the ACLU said the new law leaves many harmful provisions in place — barring protections for transgender people using restrooms or other facilities in schools or other state or local government buildings.

“This means schools, courthouses, city halls, government agencies and more cannot allow transgender people to use the right restroom,” the statement said. “It also prevents cities from passing any protections for employment discrimination or discrimination by places of public accommodation — for LGBT people or anyone — until 2020.”

Jon Davidson, legal director at Lambda Legal, said in the press release that the Trump administration is using the partial repeal of HB2 as a cover in order to withdraw support from transgender individuals.

“Sadly, this was not unexpected, now that anti-transgender forces are in charge of the Departments of Justice and Education,” he said in the press release. “Once again, the Trump administration continues to abandon transgender Americans.”

The press release said the involved organizations will continue to defend the right of transgender people to use changing facilities and restrooms that correspond with their gender identity.

“The lawsuit, which includes claims for the damages inflicted by HB2, will continue, and the legal team will seek to amend the lawsuit to challenge HB142 as well,” the press release said.

Shannon Gilreath, a professor of law at Wake Forest University, said the ACLU suit is based on the notion of a gender stereotyping claim and the partial repeal of HB2 does not change that.

“Even though that has been repealed, what the repeal legislation did was leave in place the idea that only the state can regulate bathroom usage, which is regulated right now on the old gender binary that it was always regulated,” he said. “It did not leave room for other institutions, like the UNC system for example, to voluntarily allow trans people to use a restroom of their choosing. On account of that, the gender stereotyping claim that formed the basis of the lawsuit by the ACLU is still very live.”

Full LGBTQ nondiscrimination protections are as likely to come through the court as the legislature, Meyer said.

“I certainly do think the ACLU should continue to push the judicial system to broaden the expansion of rights so that it’s clear that sexual orientation and gender identity are also protected by our existing nondiscrimination protections,” he said.

@beccaheilman

state@dailytarheel.com