Politically, and economically, the question swirling around HB2 is when. When—or will—the legislature reach consensus and repeal the controversial law? Legally, however, the question is: what now?
Days after lawmakers passed House Bill 2, the American Civil Liberties Union of North Carolina and four individuals sued the state over the law. That case was put on hold until the U.S. Supreme Court could take up a similar case out of Virginia. Earlier this month, the Supreme Court took a pass on reviewing the Virginia case and sent it back to the lower court.
Without a higher court ruling, the plaintiffs in the North Carolina case may not have much of a legal leg to stand on.
Even before the U.S. Supreme Court decided not to hear the Virginia case, the Trump Administration pulled the rug out from under transgender plaintiffs, by withdrawing guidance that the Obama Administration had sent to public schools on the use of bathroom by transgender students.
It was big news—covered by national media outlets and programs like CNN’s Anderson Cooper 360.
The plaintiff in the Virginia case is Gavin Grimm—a transgender high school student.
Grimm sued to be able to use the male bathrooms in his high school.
His case got help from the now-rescinded Obama Administration’s guidance. That rule said a federal law known as Title IX protects the rights of transgender students to use bathrooms based on the gender with which they identify.
But constitutional law professor Greg Wallace, of Campbell University in Raleigh, said that’s an erroneous reading of Title IX.
“This regulation allows schools to provide separate toilet, locker rooms, and shower facilities on the basis of sex,” Wallace said.
And he may be right.
All the language of Title IX says is that schools receiving federal funds may provide separate toilet, locker room and shower facilities on the basis of sex as long as they are equal.
The plaintiffs in the North Carolina case take Title IX’s protections too far, according to Wallace, adding that they’re taking a regulation intended to tell people what is NOT sex discrimination under Title IX “and interpreting it to tell us what IS prohibited by Title IX.”
What's next for Carcaño v. McCrory?
For Joaquín Carcaño, everything was going well when the legislature adopted HB2. Carcaño is the transgender male whose name provides the shorthand title to what some people say is a long shot case.
HB2 was enacted right around the time he was preparing to celebrate the year anniversary of starting hormone therapy.
“A lot of people like to celebrate because...it’s a marker of, of progress for you sometimes and all that was exciting and things just continued to get better and better,” he said. “And then that felt like it came out of nowhere almost.”
Carcaño says HB2 was ostracizing—forcing him to confront his status on a regular basis – an exercise he calls mentally exhausting.
“The fact that HB2 now existed is something you couldn’t escape, um, because I have to use the restroom multiple times, I have to think about where I can and cannot go multiple times a day.”
His lawyers could try to persuade the federal judge that Title IX protections should apply to transgender students—without the federal language to back them up.
But they’ll also make constitutional claims as well.
The Carcaño plaintiffs argue HB2 violates the constitution’s right to equal protection under the 14th Amendment.
Chris Brook, legal director of the ACLU of North Carolina and lead attorney on the case, said the bias behind HB2 is clear.
“The preemptive components of HB2, it’s very plain, that this was motivated, in part, by LGBT animus,” Brook said.
Brook said that leading GOP lawmaker Buck Newton--a one-time candidate for state Attorney General--said HB2 was a fight to “keep our state straight.”
Brook points out that in addition to the bathroom provisions, HB2 prevents local governments from enacting LGBT anti-discrimination ordinances. He said this law has caused real harm to the transgender community.
“One of the things this case has underlined for me is how much you just take for granted being able to go to the restroom,” Brook said. “When you’re at work or when you’re a student, when you’re engaged in your studies or when you’re on a business trip or a road trip with your friends.”
But law professor Greg Wallace—who argues HB2 is constitutional—said the real issue in the legal debate over HB2 is competing privacy concerns.
“Why do we have separate bathrooms and locker rooms and showers in the first place?” Wallace said. “It’s because we have different bodies, not different gender identities. We want to protect the privacy and safety interests that arise from our bodily differences.”
Joaquín Carcaño’s case doesn’t have a trial date yet. But on May 10th, a three-judge panel will consider a request to block the bathroom provisions of HB2.
Last summer, a federal judge ordered a temporary halt to enforcing those provisions - but only on UNC campuses, where Carcaño works.
When a trial is set, it’s likely Carcaño and the other plaintiffs will stand alone in their legal fight against HB2.
That’s in part because after the law was passed, the U.S. Department of Justice under President Obama sued the state on many of the same claims as Carcaño v. McCrory.
But shortly after withdrawing the Obama-era support, the Trump Administration’s Justice Department signaled it is likely to drop the U-S government’s case against North Carolina.