H.B. 2 Ruling Might Be ‘First Domino’

By Allen Smith, J.D. Sep 1, 2016
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A recent decision striking down Part I of H.B. 2, North Carolina's controversial "bathroom law," will let transgender students and an employee of the University of North Carolina use restrooms that match their gender identities. 

Part I of H.B. 2 blocks state agencies from permitting people to use bathrooms that match their gender identities.

While the ruling found a likely violation of Title IX of the Education Amendments of 1972, which prohibits educational institutions that receive federal funds from discriminating based on sex, it may signal the falling of the first domino against the legislation, said Todd Solomon, an attorney with McDermott Will & Emery in Chicago. "There will be appeals and other challenges brought," he said. "In addition, the legislature will likely get continued pressure to repeal H.B. 2."

Elizabeth Marvin, an attorney with Lewis Baach in Washington, D.C., agreed, saying, "A holding that the bill also violates Title VII [of the Civil Rights Act of 1964] is a logical extension of the Aug. 26 holding." However, she added, "It is far too early to predict an ultimate outcome."

Students' Dispute

The Aug. 26 ruling by a federal district court (Carcaño v. McCrory, 1:16cv236 (M.D.N.C. 2016)) involved two transgender students and one transgender employee of the University of North Carolina (UNC) system and did not address employment issues under Title VII, noted Elizabeth Gill, an attorney with the American Civil Liberties Union (ACLU) in San Francisco. 

The ACLU, along with Lambda Legal, represents the three plaintiffs in the lawsuit against North Carolina. The ACLU works to ensure that lesbian, gay, bisexual and transgender (LGBT) people can live openly without discrimination. Lambda Legal strives to achieve full recognition of the civil rights of LGBT individuals.

In Carcaño, the U.S. District Court for the Middle District of North Carolina decided that it was bound by case law in the 4th U.S. Circuit Court of Appeals (G.G. ex Rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016)). In G.G., the 4th Circuit ruled that the Education Department's opinion letter on bathrooms and gender identity must be followed. The department's opinion letter states that schools "generally must treat transgender students consistent with their gender identity." 

The Supreme Court has put on hold the 4th Circuit's mandate, as well as the district court's order to a Gloucester County, Va., school board to let a transgender boy use the boys' bathrooms. The high court is waiting until it rules on the school board's petition for review. The board filed that petition Aug. 30. 

"But, despite the stay and recall of the mandate, the Supreme Court did not vacate or reverse the 4th Circuit's decision," the North Carolina district court said. Consequently, the court was bound to follow the 4th Circuit's ruling.

"We have long said that the university has not and will not be taking steps to enforce H.B. 2," said Joni Worthington, vice president for communications with UNC. "As President [Margaret] Spellings has emphasized all along, the university has been caught in the middle of a conflict that we did not create between state law and federal guidance. We welcome resolution of these issues by the court so that we can focus all of our efforts on our primary mission—educating students. As reflected in long-standing university policy, we do not discriminate on the basis of sex, sexual orientation or gender identity."

However, North Carolina General Counsel Bob Stephens said, "The Public Facilities Privacy and Security Act is still in effect. The judge's limited injunction only applies to three individuals and is based on a 4th Circuit decision recently stayed by the U.S. Supreme Court. This is not a final resolution of this case, and the governor will continue to defend North Carolina law."

The federal district court said, "That UNC has not articulated plans for administering a specific punishment for transgender individuals who violate its policy does not undermine the existence of a justiciable case or controversy."

Joaquín Carcaño, HIV project coordinator at UNC-Chapel Hill and the transgender employee in the Carcaño case, reacted to the court's decision by saying, "Today is a great day and hopefully this is the start to chipping away at the injustice of H.B. 2 that is harming thousands of other transgender people who call North Carolina home."

Title VII Implications

The Justice Department's lawsuit against H.B. 2, unlike the ACLU's, includes Title VII as well as Title IX claims, Gill noted.

North Carolina Gov. Pat McCrory and the North Carolina legislature have countersued the federal government, and North Carolinians for Privacy filed a separate lawsuit in support of H.B. 2.

The Alliance Defending Freedom, which advocates for religious freedom and is based in Scottsdale, Ariz., called H.B. 2 "a common-sense law that protects people's privacy in restrooms and locker rooms in government buildings and public educational institutions in the state. It does this by ensuring that men do not access women's and girls' restrooms and locker rooms and vice versa, a privacy and safety norm that has long been recognized and protected in America."

And an Aug. 21 ruling by a federal district court judge in Texas issued a nationwide injunction prohibiting the Obama administration from enforcing its bathroom directives against public schools across the country (Texas v. United States, No. 7:16-cv-00054-O (N.D. Texas)). "We are pleased that the court ruled against the Obama administration's latest illegal federal overreach," Texas Attorney General Ken Paxton said.

But the U.S. District Court for the Middle District of North Carolina said iCarcaño that despite the decision in Texas, the North Carolina court had to follow the 4th Circuit's ruling in G.G

Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., cautioned that even if H.B. 2 is ultimately upheld under Title IX or by a lower court under Title VII, "if employers deny a transgender employee access to a restroom that corresponds to the employee's gender identity, the EEOC [Equal Employment Opportunity Commission] has held that such an action constitutes sex discrimination in violation of Title VII."

Phillips recommended that employers:

  • Add gender identity as a protected group in equal employment opportunity policies.
  • Provide transgender sensitivity training.
  • Adopt transgender facilities guidelines that ensure LGBT employees are not discriminated against.
"While neither the U.S. Supreme Court nor Congress has taken definitive action yet to resolve this burgeoning area of LGBT rights, employers should not be deterred by these local state measures and should continue to address transgender issues and ensure that there is no harassment or discrimination against transgender or any other employees," Phillips said.

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