HB2, News

HB2 appeal seeking transgender protections voluntarily dismissed; litigation in lower court over law still pending

All parties to litigation over House Bill 2 have agreed to dismiss an appeal that sought relief for transgender people from bathroom provisions of the law.

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

However, since HB 142 repealed the bathroom language in HB2, parties to the appeal filed a voluntary motion to dismiss it.

“Among its other provisions, HB2 directed North Carolina public agencies to ‘require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex.’ N.C. Gen. Stat. § 143- 760(b) (2016), repealed by S.L. 2017-4. ‘Biological sex’ was defined as the ‘physical condition of being male or female, which is stated on a person’s birth certificate.’ N.C. Gen. Stat. § 143-760(a)(1) (2016), repealed by S.L. 2017-4.

On March 30, 2017, while this appeal was pending, Governor Cooper signed into law the Act to Reset S.L. 2016-3, which expressly repealed HB2. See S.L. 2017-4 (Exhibit A). As a result, there is no state law barring the use of multiple occupancy bathroom facilities in accordance with gender identity.”

It should be noted that the dismissal does not signify the end of litigation over HB2. A lawsuit over the sweeping anti-LGBT law remains pending in District Court, and lawyers from the ACLU and Lambda Legal has stated it will continue to fight for transgender protections. The organization also plans to seek an amendment to the lawsuit to include the new HB142.

HB142 bars local governments from enacting future anti-discrimination protections until 2020 and states that the General Assembly will dictate future bathroom policies.

“State agencies, boards, offices, departments, institutions, branches of government, including The University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education, are preempted from regulation of access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly,” the bill states.

It’s unclear what the new law currently means for transgender residents access to bathrooms. House Speaker Tim Moore and Senate President Pro Tem Phil Berger did not return emails seeking comment about translation of the new law.

A footnote in the dismissal document states that “Intervenors-Appellees Tim Moore and Phil Berger join in this stipulation only to the extent of stipulating and agreeing that (1) the appeal should be voluntarily dismissed under Federal Rule of Appellate Procedure 42(b) and Local Rule 42; (2) the parties should bear their own costs; and (3) there is therefore no need for the supplemental briefing requested by the Court in its order of April 10, 2017, which they do not intend to submit unless otherwise instructed.”

The dismissal will not prejudice the HB2 lawsuit that is still pending.

Commentary, HB2

Leading sports columnist: NCAA wimps out

Once again this morning, some of the most incisive comments on the saga of North Carolina’s LGBTQ discrimination law can be found on the sports page — in this case the sports page of Raleigh’s News & Observer.

As was reported in the post below, the NCAA relented yesterday on its North Carolina HB2 boycott in response to the weak and inadequate “repeal” of the law that state leaders fashioned a few weeks back. To his great credit, however, columnist Luke DeCock isn’t happy about it. As the veteran journalist observes in “Back to business as usual quickly for NCAA in NC,” the change yesterday was basically a wimp out:

“In politics, as in sports, you don’t always get what you deserve. North Carolina got what it needed from the NCAA on Tuesday, but not what it deserved.

If the NCAA was serious about honoring the commitment it made to LGBT rights back in September when it pulled this year’s events from North Carolina and threatened to exclude the state entirely from this round of bidding, it would have found a way to reward North Carolina for acknowledging the error of its ways while still punishing it for not fully repealing House Bill 2, some interim position designed to encourage the state to be more welcoming to the NCAA’s constituents.

That’s not what happened. North Carolina went right back to most favored nation status with the NCAA over the four-year bid cycle announced Tuesday, landing 26 events encompassing 35 different championships, including the beloved first and second rounds of the men’s basketball tournament in 2020 and 2021. Only three states were awarded more: Pennsylvania, Florida and Indiana. Ohio, California and Texas were just behind.

The NBA, NCAA and ACC were all, to varying degrees, involved in brokering the inadequate compromise known as HB142, a step forward from HB2 but only a partial one, thanks to the unwillingness of the Republican majority to countenance the full, necessary repeal of HB2, and the new deal gave everyone the political cover they needed to get back in business with North Carolina. So they did. Or will shortly, in the case of the NBA.

North Carolina did get slapped around a little bit. The basketball subregionals were either going to be a 3/1 or 2/2 split between North and South Carolina, and Greenville, S.C., won out in 2022 over Charlotte. The state was passed over yet again for a men’s basketball regional, as it has been since 2008.”

After detailing which games will be played where, DeCock closes this way:
“Only seven months after the NCAA took a principled stand on behalf of its LGBT athletes, coaches, administrators and fans, it passed on the opportunity to match the degree of HB2 repeal with decisions that acknowledged progress while still encouraging further change. Instead, it’s back to business as usual, in North Carolina and elsewhere.”
In other words, caring and thinking people have a lot more work to do to bring actual justice and equality to North Carolina. Let’s keep at it.
HB2, News

NCAA to allow championship basketball to return to Raleigh, Greensboro – in 2020

State lawmakers who hoped a repeal compromise of the anti-LGBT law HB2 would be enough to return NCAA championship games to North Carolina got their answer Tuesday.

The NCAA announced that post-season soccer games would return to North Carolina in 2018.

The far more lucrative first and second rounds of Division I men’s basketball will return in 2020.

(Greensboro was tapped as a host site in 2020, with Raleigh hosting the first two rounds of basketball in 2021 at PNC arena.)

The NCAA explained its site selection this way:

Criteria for selecting the host sites included creating what will be an exceptional experience for the student-athletes, along with adherence to NCAA bid specifications. Specifications can include, but are not limited to, providing optimal facilities; ease of travel to the location and ample lodging; and adherence to NCAA principles, which include providing an atmosphere that is safe and respects the dignity of all attendees. The site selections follow the NCAA Board of Governors’ vote to allow consideration of championship bids in North Carolina.

Lawmakers replaced HB2 with House Bill 142 earlier this month, though LGBT advocates called the new law a “sham” as it prevents local governments from passing their own non-discrimination ordinances through 2020.

The Human Rights Campaign and Equality NC have condemned the NCAA’s decision:

“The NCAA has fallen ‘hook, line, and sinker’ for this ‘bait and switch’ sham ‘deal’ doubling down on discrimination,” said JoDee Winterhof, HRC Senior Vice President for Policy and Political Affairs. “Even worse, the NCAA has inexcusably gone back on its promise to ensure all championship games are held in locations that are safe, respectful, and free of discrimination. By rewarding North Carolina with championship games, the NCAA has undermined its credibility and is sending a dangerous message to lawmakers across the country who are targeting LGBTQ people with discriminatory state legislation. In addition to protecting the broader LGBTQ community, the NCAA needs to clearly state how they will be protecting their student athletes, personnel and fans.”

“How can LGBTQ people  — especially members of the transgender community  — be safe and free from discrimination, much less protected against mistreatment or harassment with the sham fake repeal of HB2?” said Equality NC Executive Director Chris Sgro. “The unfortunate reality is they cannot. HB 142 was a cheap political trick that did nothing to alleviate the concerns the NCAA initially outlined when it pulled games from the Tar Heel state last year, and even adds new forms of discrimination to North Carolina’s laws. It is unthinkable that the NCAA would abandon its commitment to LGBTQ fans, players, and administrators by falling for this trick.”

HB2, News

In case you missed it: Federal government files motion to withdraw from HB2 litigation

The U.S. Department of Justice filed a motion Friday to withdraw from litigation over House Bill 2, North Carolina’s sweeping anti-LGBTQ law that was repealed and replaced by legislation that accomplishes similar goals.

The motion was filed “in light of the passage of North Carolina Session Law 2017-4, House Bill 142,” according to the motion.

HB142 is the law legislators passed to repeal HB2, but the law also prohibits local governments and other public entities (like the university system) from enacting transgender equity ordinance and rules without the legislature’s approval. It also makes clear that no local governmental body in the state can “enact or amend any ordinance regulating private employment practices or regulating private accommodations” until 2020.

The ACLU, ACLU of North Carolina, and Lambda Legal been working on Carcaño v. McCrory (now known as Carcaño v. Cooper), a federal challenge to HB2, for more than a year. The organizations will continue the fight in court despite the passage of HB142.

Barack Obama’s administration also fought HB2 in court, alleging the legislation violated multiple federal laws. President Donald Trump’s administration is a different story.

Attorney General Jeff Sessions openly opposes transgender equality and has tried to reverse Obama administration’s protections for LGBTQ individuals.

LGBTQ advocates are not pleased with the the DOJ’s decision.

“Here is yet another instance of the Trump administration and Attorney General Jeff Sessions withdrawing the federal government’s support from transgender individuals, and they are using the fake repeal of HB2 as cover,” said Jon W. Davidson, Legal Director and Eden/Rushing Chair, Lambda Legal. “Sadly, this was not unexpected, now that anti-transgender forces are in charge of the Departments of Justice and Education. Once again, the Trump administration continues to abandon transgender Americans.”

James Esseks, director of the ACLU’s LGBT Project, said that while the DOJ may want to use the “fake repeal” of HB2 as a cover, his organization would continue to fight.

“We’ll continue this fight as long as it takes to truly strike down this disastrous law for good,” he said in a news release.

The North Carolina GOP praised the DOJ’s litigation decision.

“The Trump administration has take a very reasonable and common sense action that is welcomed,” said former governor Pat McCrory in a press release.

NC GOP Executive Director Dallas Woodhouse said Americans were “once again” seeing the Trump administration reign in the “hyper-partisan Obama Justice Deparment,” a trend he hopes continues.

HB2, News

Transgender athlete who represents USA explains why NCAA returning to NC should not be celebrated

Chris Mosier (Source: Facebook)

After North Carolina lawmakers passed House Bill 2, Chris Mosier was faced with a decision about whether or not to compete in one of the most meaningful races of his life because of location.

The transgender athlete didn’t feel welcome in the Tarheel state and he was concerned for his safety both in competing and in navigating public spaces outside of his big race.

HB2 may be gone, but now HB142 stands firmly in its place, assuring the LGBTQ community will remain without lawful protections in the state of North Carolina.

After demanding the HB2 repeal and threatening to leave North Carolina for years to come, the NCAA announced shortly after HB142’s passage that championships would return to the state. The organization noted that lawmakers met its bare minimum requirements to be considered a venue.

LGBTQ advocates, including Mosier, have criticized the sports organization’s decision to “reward” North Carolina for the charade of repealing the sweeping anti-LGBTQ legislation. They’ve also said it sends a message to other states considering similar “bathroom bills” that there won’t be repercussions.

“As a transgender athlete, it feels like HB142 puts me at risk for discrimination, harassment and exclusion,” Mosier said.

He became the first transgender athlete to represent America after earning a spot on the Team USA sprint duathlon men’s team for the 2016 World Championship. He is also a coach and the vice president of the You Can Play Project, which represents LGBTQ athletes.

Because of HB142, Mosier has once again been faced with the decision about whether or not to compete in North Carolina, but he made clear on a conference call last week that he’s not sitting this race out. He will return to Cary on April 28 to compete in the Cary Du Classic race.

The ACLU organized the conference call. The organization is fighting the NCAA’s decision to return to North Carolina and fighting for LGBTQ communities to have lawful protections both in the state and across the country.

“Personally, it’s important for me to show up and to compete, because I think that sends a message that we will not be stopped, and while it will be uncomfortable and it will not be my favorite race, I think it is important that I not let HB142 stand in the way of me achieving my athletic goals,” he said. “That being said, I don’t think that student athletes need to be put in that position.”

When Mosier attended the race last year, he gassed up at the border, before entering North Carolina, went straight to his hotel, then went from the hotel to the race, from the race to the hotel and then went home. He didn’t spend any money in the state and was uncomfortable in that setting.

“Most of my competitors were not focusing on these things in the critical days and moments leading up to our race,” he added.

He said when he first transitioned categories in sports in 2010, he excelled after getting acceptance from his teammates and competitors.

“When I was able to stop worrying about what people might say to me at the starting line about my gender, or if I would be able to use a particular locker room [facility], I found that I could put more of my focus and my attention in my training, in my racing, and then that kind of effort showed,” he said. “I began winning my age group and eventually winning races overall.”

He said when he was in North Carolina last year, he didn’t even wear his regular uniform that said “Mosier U.S.A.” because he didn’t want to be a target after speaking out against HB2.

“Imagine being at the starting line at one of, if not the most, important sporting events of your career and being worried about being attacked or being harassed,” he said.

Competing without fear, having access to locker rooms and public spaces are critical components of achievement for an athlete, and North Carolina does not offer that with HB142 in place, according to Mosier.

“We know that these laws single out transgender people like me by sending a message that we are not worthy of legal protection and that we shouldn’t be included in public life,” he said. “HB142 creates an unsafe environment for people who are, or who are perceived to be, transgender, and it has a particular focus on harming trans people. … What’s happening here is that they are authorizing discrimination, and it situates me as a transgender person as a threat to the safety and privacy of others, which I am not, and transgender people are not.”

Mosier wants to believe the NCAA values inclusion. In fact, he has presented twice at NCAA inclusion conferences.

“I know there are good people doing great work at NCAA about inclusion, and that was not part of this conversation and that was not reflected in the outcome of them returning back to North Carolina,” he said.

Mosier said the LGBTQ community’s protection should not be an afterthought, adding that the values instilled in sports participants do not line up with North Carolina’s intolerance and discrimination.

“I think that sport is really a great equalizer, and it’s also a great vehicle for social change,” he said. “I know that those athletes who are accepting me, welcoming me, see me as a great athlete, learn that I’m transgender, learn more about transgender identity [and] they become better, more inclusive people outside of the games, outside of the races, and so there’s a great benefit to our interactions.”