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Justice Department Withdraws Suit Over North Carolina's HB 2

Jeff Sessions

The move comes after the law's "repeal," but activists say it's yet another Trump administration failure on LGBT rights.

The Department of Justice has dropped its lawsuit against North Carolina over House Bill 2, now that the anti-LGBT law has been repealed and replaced, although the Trump administration was backing away from the suit even before that.

The administration announced the move in a two-sentence document filed today in federal court in North Carolina, The Washington Post reports. The move was expected, as even before the repeal of HB 2, lawyers with the department told a federal judge they would no longer seek an injunction against enforcement of the law, the Associated Press notes.

The action is yet another indication of a far different approach to LGBT rights by President Donald Trump and Attorney General Jeff Sessions than that taken by their predecessors. The Justice Department filed the suit last year, when Barack Obama was president and the department was led by Attorney General Loretta Lynch. In a comment directed at transgender Americans, a primary target of HB 2, Lynch said last May, "No matter how isolated, how afraid, and no matter how alone you may feel today, note this -- the Department of Justice and indeed the entire Obama administration want you to know: We see you, we stand with you, and we will do everything we can to support you going forward."

HB 2 required transgender people to use restrooms, locker rooms, and other single-sex facilities corresponding with the gender on their birth certificate, rather than their gender identity, when in government buildings, including public schools and state colleges and universities. It also barred municipalities from enacting or enforcing LGBT-inclusive nondiscrimination ordinances.

The state repealed HB 2 on March 30, replacing it with a compromise that many LGBT activists found deeply unsatisfactory. The restroom restrictions are gone, but the replacement law, House Bill 142, leaves any policy relating to such facilities in the hands of the state, not cities or counties. The replacement also bars municipalities from enacting any nondiscrimination ordinance relating to private employment or public accommodations until December 2020.

Activists were not happy with the Justice Department's withdrawal of its suit either. The American Civil Liberties Union and Lambda Legal plan to continue with their federal suit on behalf of transgender North Carolina residents, officials with the groups said in a joint press release. The suit seeks to recover damages for harm done by HB 2, and the organizations plan to amend it to challenge HB 142 as well.

"The Trump administration may want to use the fake repeal of HB 2 as an excuse to further turn their backs on the transgender community, but the rest of us aren't going to give up that easily," James Esseks, director of the ACLU's LGBT Project, said in the release. "We'll continue this fight as long as it takes to truly strike down this disastrous law for good."

The groups noted that the administration has withdrawn the Obama-era guidance on equal treatment of transgender students in public schools, rescinded an Obama executive order requiring federal contractors to provide proof of compliance with nondiscrimination laws, and declined to appeal a preliminary injunction in a lawsuit against enforcement of the mandate for coverage of transition-related health care under the Affordable Care Act.

"Here is yet another instance of the Trump administration and Attorney General Jeff Sessions withdrawing the federal government's support from transgender individuals, and they are using the fake repeal of HB 2 as cover," Jon W. Davidson, legal director for Lambda Legal, said in the release. "Sadly, this was not unexpected, now that anti-transgender forces are in charge of the Departments of Justice and Education. Once again, the Trump administration continues to abandon transgender Americans."

Speaking to the Associated Press, Lambda Legal lawyer Tara Borelli added, "This move does not affect the merits of the case. HB 2 was unconstitutional as of the moment it was enacted. HB 142 was unconstitutional the moment it was enacted. We don't think the courts will have any trouble seeing that, regardless of who's sitting at counsel's table."

The National Center for Transgender Equality, which is not involved in the suit, also denounced the administration's action. "Former Attorney General Loretta Lynch correctly spoke to our country's best traditions when saying this case was about 'the dignity and respect we accord our fellow citizens, and the founding ideals that have led this country -- haltingly but inexorably -- in the direction of fairness, inclusion and equality for all Americans,'" executive director Mara Keisling said in a press release. "Since taking office, the Trump Administration has sought to dismantle a range of protections, rights, and civil protections for more than 1.4 million transgender people in the United States. Under Attorney General Jeff Sessions, the Department of Justice is waging a campaign to target the rights of the transgender community. While the federal government is abdicating its responsibility, discriminatory measures like HB 2 and its successor will not stand, because they have brought too much shame and harm to the people of North Carolina."

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