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North Carolina Law Doesn't Restrict Trans Restroom Access, Judge Rules

ACLU attorney Chris Brook
ACLU attorney Chris Brook

Activists challenging the law welcome the ruling, and their suit against its other provisions will continue.

A federal judge in North Carolina has ruled that the law that replaced the infamous anti-transgender House Bill 2 doesn't restrict public restroom access for trans people.

U.S. District Judge Thomas Schroeder made the ruling Sunday night in a lawsuit challenging House Bill 142, which Gov. Roy Cooper signed into law last year to partially repeal and replace HB 2. It repealed the portion of HB 2 requiring trans people to use the restrooms that match the gender on their birth certificate, not their gender identity, when in government buildings, including public schools and state colleges and universities. But it left the question of restroom access in the hands of the state legislature instead of cities and counties, leaving open the option that a law similar to HB 2 could be passed.

The American Civil Liberties Union and Lambda Legal, representing six LGBTQ North Carolinians and members of the ACLU's North Carolina affiliate, challenged HB 142 on several grounds, including that it "is vague and doesn't explicitly allow transgender people to use the bathroom that reflects the gender with which they identify," The News & Observer of Raleigh reports.

Schroeder dismissed the part of the suit challenging the provision governing restroom access, but in doing so he gave the plaintiffs a victory. "Nothing in the language of Section 2 [of HB 142] can be construed to prevent transgender individuals from using the restrooms that align with their gender identity," he wrote.

HB 142 also prevents municipalities from enacting nondiscrimination ordinances that cover any group not included in state law, including LGBTQ people, until 2020. Schroeder ruled that the lawsuit's challenge to this portion of the law can proceed.

The plaintiffs welcomed his ruling. "I am relieved to finally have the court unequivocally say that there is no law in North Carolina that can be used to bar transgender people from using restrooms that match who we are," Joaquin Carcano, lead plaintiff in the lawsuit, said in an ACLU-Lambda Legal press release. "For the past two and a half years, I have been unable to use restrooms in my home state without worrying that I will be subject to discrimination, harassment, or even arrest. Our community has faced so much discrimination because of HB 2 and HB 142, and this decision will give us more support to defend the rights and basic humanity of our community members across the state."

"By making clear that transgender people in North Carolina cannot be barred from using public facilities that match their gender identity, this decision lessens some of the harm that has been caused by these laws' disgraceful and indefensible attacks on LGBT North Carolinians," added ACLU of North Carolina legal director Chris Brook. "The court's decision does not account for the very real injuries LGBT people have faced under both HB 2 and HB 142, but we will continue fighting for the rights of all LGBT people in North Carolina as this case proceeds. 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."

"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," said Lambda Legal counsel Tara Borelli. "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."

The Human Rights Campaign, which is not a party to the suit, praised the decision as well but called for repeal of the law. "Today's ruling made clear that the discriminatory and poorly written HB 142 does not prevent transgender North Carolinians from using restrooms consistent with their gender identity. Despite this, the law -- and the state -- remain deeply problematic for LGBTQ equality," said a statement issued by HRC legal director Sarah Warbelow. "It remains impossible for city and town governments to protect LGBTQ people from discrimination, including in public accommodations. What is needed and necessary for LGBTQ people is the full repeal of HB 142 and the enactment of statewide protections."

Far-right activists, unsurprisingly, were not satisfied. "Judge Schroeder's ruling identifies the real problem with HB142 -- that it does not bar transgender people from using restrooms based on their identity," Tami Fitzgerald, head of the NC Values Coalition, said in an email to The News & Observer. "However, there are other laws that would, and Plaintiff's characterization of the decision that 'there is no law in North Carolina that can be used to bar transgender people from using restrooms that match' how they identify is blatantly false."

The ACLU, she said, is "fanning flames of fear" and trying to "elevate the rights of transgender people above the rights of the vast majority." She added that Schroeder "is allowing the ACLU to make North Carolina into California."

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