New Letter on Transgender Rights Complicates, but Doesn't End, H.B. 2 Lawsuits | Eastern North Carolina Now

    Publisher's note: The author of this post is Barry Smith, who is an associate editor for the Carolina Journal, John Hood Publisher.

Even if Trump administration abandons federal lawsuit, private litigation by ACLU and others about transgender rights and facility accommodations will continue

    A reversal of an Obama administration directive on transgender rights could spell the end of a House Bill 2 related lawsuit between the state and the federal government, but another lawsuit, brought by private parties, will keep the issue in flux.

    Obama's guidance formed much of the basis for the legal action related to the feds challenge of H.B. 2, so reversing that guidance could result in a dismissal of the lawsuit. In May 2016, the federal Justice and Education departments issued a "dear colleague" letter, which says the Title IX prohibition against sex discrimination in educational programs "encompasses discrimination based on a student's gender identity."

    Wednesday, the two departments, now under President Trump, issued their own "dear colleague" letter withdrawing support for the May 2016 position, saying the previous administration failed to explain how the directive is consistent with the express language of Title IX, a federal law which bars discrimination in education based on sex.

    Obama's guidance came two months after the N.C. General Assembly adopted the Public Facilities Privacy and Security Act, more commonly called H.B. 2. Among other things, the law negated a Charlotte ordinance expanding transgender rights and placed a requirement allowing people to use the bathroom or changing room that was consistent with their gender identity.

    The U.S. Justice Department brought the aforementioned lawsuit challenging H.B. 2. The Private plaintiffs, represented by the ACLU of North Carolina, brought a separate lawsuit challenging the law's constitutionality.


U.S. Attorney General Jeff Sessions, pictured here, and attorneys for the U.S. Department of Education, issued a letter Feb. 22 withdrawing support for an Obama administration opinion that sex-discrimination laws should cover gender identity. Experts say that letter could make the federal government's lawsuit involving House Bill 2 go away. (Photo courtesy of U.S. Department of Justice)

    In August 2016, U.S. Middle District Judge Thomas Schroeder, in the case brought by the ACLU, issued an order barring the UNC system from enforcing provisions of H.B. 2 in the state's university system. Schroeder based his order on a ruling by the U.S. 4th Circuit Court of Appeals in which a Gloucester County, Virginia, transgender student won a lawsuit against the school system's policy requiring students to use the bathroom of their biological gender.

    Greg Wallace, a professor of law at the Campbell University School of Law, said the action by Trump's Justice Department could make the state's legal battle with the federal government over transgender policy go away. In fact, he predicted the federal government's lawsuit would be dismissed.

    But Wallace and the ACLU say that the private plaintiffs' lawsuit won't go away so easily, but it could become more difficult for the plaintiffs to win.

    "As to the private plaintiffs' lawsuit, their Title IX claim will not automatically go away but they will have to argue that the word 'sex' in Title IX means 'gender identity,'" Wallace said. "The only real support they had for that was that's the way the Obama administration interpreted it."

    Still, the administration's reversal means leaving the plaintiffs with "a huge hill to climb to try to convince the court that based on the statutory language alone that sex means gender identity," Wallace said.

    Chris Brook, legal director of the ACLU of North Carolina, said the plaintiffs' lawsuit doesn't rest solely on the now reversed Obama administration's guidance.

    "Regardless of what happens with the Department of Education guidance and the Trump administration, our case will go forward," Brook said. "We have constitutional and statutory claims that are not dependent on the Department of Education's interpretation of Title IX.

• "I do not know what the Trump administration's plans are for that lawsuit, but if they were to walk away from that lawsuit, then that has no impact on the constitutional and statutory claims that we've made in the Middle District."

    Wallace said he thinks the ACLU will continue its lawsuit, hoping to find sympathetic judges on appeal.

    "The 4th Circuit is one of the most liberal circuits in the country now," Wallace said. "I think the ACLU lawsuit will proceed, but it has just gotten 10 times harder to win, or maybe more than that.

    Reaction to the Trump administration's reversal was predictable. Social conservatives praised the move, and social liberals condemned it.

    "The DOJ and DOE's letter correcting the Obama administration's unlawful guidance letter to schools last spring is good news for the privacy, safety, and dignity of young students across America," said Tami Fitzgerald, executive director of the N.C. Values Coalition, which supports H.B. 2. "The Obama administration radically distorted a federal law that was intended to equalize educational opportunities for women and misused the law to open students' private facilities to members of the opposite sex."

    Ames Simmons, director of transgender policy for Equality NC, which supports gay, lesbian, bisexual, and transgender rights, said the move by the Trump administration was terrible.

    "We believe that the Trump administration's action to rescind the Department of Education guidance with respect to transgender students is a terrible message for the Trump administration to be sending to some of the most vulnerable kids in public education today - that the president and his administration are not there to protect them from discrimination," Simmons said. "I worry about kids in school today and whether they may be frightened or what people might be saying today."

    Bill Cobey, chairman of the State Board of Education, said Trump's reversal will have little or no effect on the state's public schools.

    "It was only a letter of guidance; it was not a regulation," Cobey said of the Obama administration's position. "The leadership of our schools for years has been making accommodations for transgender children and any children with special needs."

    UNC President Margaret Spellings issued a statement on the system's equal access policy. "The administration's 'dear colleague' letter doesn't change this," Spellings said.