A federal judge today used the words of the attorney representing North Carolina Gov. Pat McCrory to justify blocking the anti-trans provisions of the state's controversial anti-LGBT law known as House Bill 2.
U.S. District Judge Thomas Schroeder granted a preliminary injunction barring the University of North Carolina from enforcing the so-called bathroom bill provision of HB 2, which bars transgender people from using restrooms and locker rooms that correspond with their gender identity when those facilities are in government buildings (including at the state-run university).
"Ultimately, the record reflects what counsel for Governor McCrory candidly speculates was the status quo ante in North Carolina in recent years," writes Schroeder. "Some transgender individuals have been quietly using bathrooms and other facilities that match their gender identity, without public awareness or incident."
The injunction is limited in scope, meaning it technically applies only to the individuals who filed suit, though UNC leaders had already announced, under growing public pressure, their intention not to enforce the anti-LGBT law across UNC's several campuses. The injunction will remain in place until the case is decided, following the full trial scheduled to begin November 14.
The 83-page ruling goes on to explain that the plaintiffs, who include three transgender North Carolinians who are students or faculty members at various UNC institutions, are likely to succeed in their claim that the anti-trans provision of HB 2 violates existing civil rights law that prohibits discrimination based on sex.
Specifically, Schroeder speculates that the plaintiffs, who are represented by the American Civil Liberties Union of North Carolina and Lambda Legal, are likely to persuade the court that HB 2 runs afoul of Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational facilities that receive federal funding. The Obama administration and a growing number of state and federal courts -- crucially including the Fourth Circuit, which holds jurisdiction over North Carolina -- have determined that Title IX's prohibition on sex discrimination also extends to discrimination based on gender identity. Schroeder writes:
"It is important to note what is (and is not) in dispute. All parties agree that sex-segregated bathrooms, showers, and changing facilities promote important State privacy interests, and neither Plaintiffs nor the United States contests the convention. Further, no party has indicated that the pre-HB2 legal regime posed a significant privacy or safety threat to anyone in North Carolina, transgender or otherwise. The parties do have different conceptions, of how North Carolina law generally operated before March 2016, however, and whether 'sex' includes gender identity."
Although Schroeder is less certain the plaintiffs will succeed in their claim that HB 2 violates the Equal Protection Clause of the U.S. Constitution, his injunction acknowledges that the transgender students, faculty, and staff at UNC institutions could face serious harm if the law's "bathroom bill" provision is enforced.
"Today is a great day for me and hopefully this is the start to chipping away at the injustice of HB 2 that is harming thousands of other transgender people who call North Carolina home," said Joaquin Carcano, lead plaintiff in the case, in a statement issued by Lambda Legal, Equality North Carolina, the ACLU, and the law firm of Jenner & Block. "Today, the tightness that I have felt in my chest every day since HB 2 passed has eased. But the fight is not over: we won't rest until this discriminatory law is defeated."
In granting the injunction, Schroeder appears skeptical of the "common sense" and "public safety" claims frequently presented by those supporting (and responsible for authoring) HB 2.
"First, the record suggests that, for obvious reasons, transgender individuals generally seek to avoid having their nude or partially nude bodies exposed in bathrooms, showers, and other similar facilities," writes Schroeder. "Second, North Carolina's decades-old laws against indecent exposure, peeping, and trespass protected the legitimate and significant State interests of privacy and safety."
Indeed, Gov. McCrory told reporters in May that the state was already enforcing the bathroom provisions of HB 2 through existing trespassing laws. "It's just basic privacy rights and that's trespassing and we'll continue to do that just like we were doing long before" the passage of HB 2, McCrory said. "So nothing's really changed in that regard."
In a pointed footnote, Schroeder appears to criticize McCrory and state lawmakers who rushed HB 2 through in less than 12 hours during a special legislative session for not showing the same sense of urgency when filing supporting documents in this case.
After asking for a months-long extension, McCrory and his allies submitted just six documents supporting their argument against granting the injunction, Schroeder notes. McCrory, along with North Carolina Senate President Pro Tempore Phil Berger and House Speaker Tim Moore, "claimed the need for extensive factual discovery to adequately address the issues presented in Plaintiffs' motion," writes Schroeder. But the six exhibits submitted each consist of only "a short news article or editorial," and the state announced in a July conference that it does not plan to submit additional evidence regarding the request for an injunction. "As a result, nearly the entire factual record in this case is derived from materials submitted by Plaintiffs," Schroeder writes.
That's very likely why Friday's injunction accepts the definition LGBT advocates often use of what it means to be transgender: a person whose gender identity differs from the sex they were assigned at birth, which is usually determined by anatomy. The court states that for the purpose of the injunction, it accepts "Plaintiffs' unrebutted evidence that some transgender individuals form their gender identity misalignment at a young age and exhibit distinct 'brain structure, connectivity, and function' that does not match their birth sex."
The decision comes shortly after a pair of anti-transgender rulings issued by federal judges in other districts. Late Sunday night, U.S. District Judge Reed O'Connor issued a nationwide injunction barring the Obama administration from enforcing its trans-inclusive student guidelines announced in May. The ruling was marked by a noticeable absence of discussion about transgender people and at some points seemed to deny that transgender students actually exist.
On August 18 a federal judge in Michigan dismissed a discrimination case brought on behalf of a transgender woman who was fired from her job as a funeral director after she announced her intent to transition on the job. U.S. District Judge Sean F. Cox determined that the "sincerely held" religious beliefs of the owner of Harris Funeral Homes permitted him to fire the woman for seeking to adhere to the women's dress code after her transition, because the owner's faith led him to believe that gender is immutable, and determined by God.
Schroeder, a native of Georgia who earned his law degree from Notre Dame, was appointed to the federal bench by President George W. Bush and authored the recently overturned ruling upholding North Carolina's voter ID law, notes NPR.