Courts & the Law, HB2, News

Appeal seeks to protect all transgender North Carolinians from HB2, not just plaintiffs in lawsuit challenging legislation

House Bill 2 makes transgender North Carolinians pariahs in their own state, according to an appeal to the legislation filed Wednesday.

HB2Courthouses, airports, libraries, public schools, state and local agency offices, highway rest stops, police departments, state hospitals, and the very halls of government itself are now unsafe for, and unwelcome to, transgender North Carolinians. Such unequal treatment simply cannot be squared with the Fourteenth Amendment’s promise of equality under the law.

A preliminary injunction was previously granted in Carcaño v. McCrory preventing the North Carolina university system from enforcing HB2 against the three transgender plaintiffs in the lawsuit. The appeal seeks to extend that injunction to prevent discrimination against all transgender people in the state.

Indeed, the district court recognized the harms that HB2 inflicts — and the utter lack of any justification for those harms — when it granted a preliminary injunction against enforcement of HB2 by the University of North Carolina under Title IX. But the district court held that Plaintiffs were not likely to succeed on their equal protection claim, which reaches the full range of public facilities governed by HB2, and wrongly denied the broader injunctive relief Plaintiffs sought. The district court did so based in part on the extraordinary rationale that transgender people are only a small minority of the population. That is not how the Constitution’s guarantee of equal protection works. The district court’s denial of broader injunctive relief under the Equal Protection Clause should therefore be reversed.

LGBT rights groups that are part of the appeal also asked the Fourth Circuit Court of Appeals to expedite the appeal and schedule oral argument for January.

“Every day that HB2 singles out transgender North Carolinians – whether at school, at work, or just moving through their daily lives – is another day that the transgender community is told that they are second class,” said Chris Brook, ACLU of North Carolina legal director. “Though the district court recognized the serious harm to three of our clients at UNC as a result of H.B. 2, that recognition unfortunately didn’t extend to the harms that law inflicts on other transgender individuals in public buildings across North Carolina. We hope and expect that the Fourth Circuit will expand this ruling to protect all transgender people.”

The appeal argues that HB2 specifically targets transgender people and therefore is a form of sex discrimination. It challenges the opposition’s claims of public safety and privacy by noting that there are more constitutionally permissible ways to promote those goals than HB2.

For Plaintiffs, and the more than 44,000 transgender North Carolinians like them, HB2 has created an unprecedented legal regime that places transgender people into a singular, openly stigmatized class. Transgender people alone are barred from using sex-separated facilities matching who they are, which all other men and women are permitted to use.

The toll that HB2 exacts on the everyday lives of transgender people is devastating and irreparable.

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