North Carolina’s “bathroom bill” (H.B. 2), the most prominent symbol of government rules being challenged by transgender people, cannot be enforced against three residents of the state while the measure’s validity is being tested in the courts, a federal judge in Winston-Salem ruled on Friday.
The 83-page rulling by U.S. District Judge Thomas D. Schroeder marked the first time that H.B. 2 had been blocked on a finding that it probably will not survive a challenge, at least under Title IX, a federal law that protects against sex discrimination in education programs receiving federal money.
For now, however, the judge refused to go beyond his temporary ruling on Title IX, explicitly raising doubts about whether H.B. 2 is likely to be ruled unconstitutional when a full-scale trial is held. The judge said, however, he would leave open the opportunity for the challengers to build a stronger constitutional case against the measure later, based upon claims of legal equality and violations of a right of privacy.
Judge Schroeder is handling three separate lawsuits on the legality of the “bathroom bill,” including one filed by the Obama administration (moving on a slower court track), but his Friday decision applied only to two University of North Carolina students and a university employee, who are transgender. And, because those three sued only for themselves, the order against enforcement is limited to them.
The judge’s order not only assures those individuals access to restrooms that match their gender identity, not their gender at birth, but also equal access to locker rooms, showers and similar intimate facilities on the campuses operated by UNC land in other state-run facilities.
Despite the limits and qualifiers in the ruling, it was a distinct victory in the nationwide campaign by civil rights groups — and by the Obama administration — to widely extend legal protection for transgender people. Those are people who are assigned one gender at birth based on physical characteristics but come to accept themselves as of the opposite gender as they grow up.
The dispute, at least as it applies to Title IX’s coverage, is on its way to the Supreme Court, perhaps first in a case from a small town in Virginia in which a 17-year-old transgender student entering his high school senior year, Gavin Grimm, is challenging his local school board’s policy. On August 3, splitting 5-to-3, the Supreme Court temporarily blocked a ruling by the U.S. Court of Appeals for the Fourth Circuit in favor of Gsvin’s Title IX claim.
The Gloucester County School Board, whose policy on bathroom access is at issue in the Grimm case, is due to file its appeal on Monday. The Justices will not examine it until some weeks later.
The Obama administration’s legal view that discrimination based on sex also means discrimination based on gender identity has been rejected by a federal judge in Fort Worth, Texas. That judge last week issued a nationwide ban on enforcement of the policy.
On Friday, however, Judge Schroeder ruled that he was not bound by the Texas judge’s ban, but rather, as a trial judge in the federal Fourth Circuit, was bound by the Fourth Circuit Court’s ruling that Title IX’s protection against sex bias extends to gender identity discrimination. The Circuit Court said it was simply accepting the view of federal officials that Title IX did extend to gender identity claims.
In expressing significant doubt about the three challengers’ claim that H.B. 2 violates the Equal Protection Clause of the Fourteenth Amendment, Judge Schroeder concluded — at least for the time being — that H.B. 2 is not likely to be struck down on that premise. H.B. 2’s limitation on access to state-run restrooms and other similar facilities probably can be justified, the judge ruled, on the ground that it protects a privacy interest that is related to physiological identity — the characteristics of male and female bodies.
But he did not rule out that equal protection claim entirely, and he chose not to rule on a separate claim of violation of privacy. That claim is based on the argument that it violates a right of privacy guaranteed by “due process” to use the information about gender on one’s birth certificate as a basis for enforcing H.B. 2 on access to intimate facilities.
Although the judge’s injunction against enforcement of the law against the three individuals who sued is a preliminary order, because he has not yet held a full trial, the state would be free to try to challenge it in an appeal to the Fourth Circuit Court and, later, the Supreme Court.