DURHAM, N.C.—Classes at the University of North Carolina began Tuesday with a big question still unresolved: the fate of HB2, the “bathroom bill” passed by the General Assembly in March. But late Friday afternoon federal Judge Thomas Schroeder delivered a defeat to the law, ruling that the university system cannot enforce it.
The statute requires transgender people to use the bathrooms corresponding to the sex on their birth certificate, rather than their gender identity, in public restrooms and locker rooms, including at schools and state universities. A range of groups are challenging the law, including the U.S. Department of Justice and the ACLU, alleging that the law violates Title IX of the Civil Rights Act as well as the Due Process and Equal Protection clauses of the U.S. Constitution.
The case is just getting started, but several of the plaintiffs—including Joaquín Carcaño, a transgender man who is a student at the University of North Carolina at Chapel Hill—requested an injunction to prevent the law from going into effect as the school year began. On Friday, Schroeder, a judge in the Middle District of North Carolina, sided with the plaintiffs. He wrote:
After careful consideration of the limited record presented thus far, the court concludes that the individual transgender Plaintiffs have made a clear showing that (1) they are likely to succeed on their claim that Part I violates Title IX, as interpreted by the United States Department of Education (“DOE”) under the standard articulated by the Fourth Circuit; (2) they will suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities weighs in favor of an injunction; and (4) an injunction is in the public interest.
To succeed, a challenge does not have to actually win; the plaintiffs simply have to show that they are likely to win their case, based on existing law. Based on Schroeder’s ruling, the UNC system now cannot enforce the law until the court has made a final ruling on the merits of the case.
Schroeder was more cautious on the other arguments posed by the challenge to the law. “Plaintiffs have not made a clear showing they are likely to succeed on their Equal Protection claim, and the court will reserve ruling on their due-rocess claims pending additional briefing from the parties,” he wrote. (The ruling goes on for 83 pages; Schroeder, a George W. Bush appointee, delivered a massive 489-page ruling in April upholding North Carolina’s strict voting law, though a federal appeals court overturned his decision.)
Defendants in the case include Governor Pat McCrory, a Republican, and the UNC system. The university system, which is led by former George W. Bush administration Education Secretary Margaret Spellings, has shown ambivalence about the law, though Spellings said it would not enforce it.
“How does this law make bathrooms and changing facilities safer?” U.S. District Judge Thomas Schroeder asked South Carolina-based attorney Butch Bowers, who represented McCrory at the three-hour hearing.
How is it enforced, Schroeder also asked in many different ways.
“There is no enforcement mechanism of the law,” Bowers told him.
“Then why have it?” Schroeder asked.
Attorney General Roy Cooper, a Democrat who is running for governor against McCrory, has refused to defend the law in court. The law has become a major issue in the state’s gubernatorial race. Republican lawmakers called a special session to consider the bill in March, in an attempt to supersede a Charlotte ordinance mandating transgender bathroom rights. The bill was passed and sent to McCrory, who signed it less then 12 hours after it was introduced.
The law provoked a fierce backlash. Several major corporations canceled or paused plans to create jobs in the state, and the NBA decided to move the 2017 All-Star Game, which had been slated for Charlotte. A Monmouth University poll this week found North Carolina voters disapprove of the law 55-36, while seven in 10 said it has been bad for the Old North State’s reputation. The same poll showed Cooper leading McCrory by nine points, 52-43, though other polls have indicated a closer race.
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