The courts or the legislature? The future of HB2 beyond November

The courts or the legislature? The future of HB2 beyond November

hb2-after-novWith less than two weeks before the Nov. 8 election, North Carolina House Bill 2 continues to be a contentious rallying point for the political left and right.

But what is the future of the controversial law beyond election season? Is repeal possible, or would a definitive federal ruling on the law be preferable?

The bill, which excludes lesbian, gay, bisexual and transgender people from statewide nondiscrimination protections, has been at the center of a political firestorm since Gov. Pat McCrory signed it into law in March.

Its most controversial provision, a requirement that transgender people must use restrooms and locker rooms matching the sex on their birth certificates rather than their gender identity, has generated international attention and a federal lawsuit.

This week it was revealed yet another company bypassed North Carolina over HB2, costing the city of Charlotte $8.2 million in initial investment and another 730 jobs. That’s the latest in a series of boycotts, cancelled events and other losses to the state – including the NCAA and ACC moving major championship games heavily associated with the state.

Those losses have led to renewed calls for the General Assembly to fully repeal HB2 – something leaders of the state’s Republican majority now say they’ve never considered, even during harried negotiations on repeal back in September.

Enrique Armijo

Despite some Republican legislators now calling for the bill’s repeal, the legislative path to undoing the law continues to look narrow.

But some of the state’s best legal and political minds say repeal may not be the most effective method of defeating HB2 once and for all.

“A legislative solution could be temporary,” said Enrique Armijo, a constitutional law professor at Elon University School of Law. “If you’re in favor of repealing the law, you should really want a federal court to strike it down.”

A law willingly repealed by the General Assembly could be reconstituted and passed again, Armijo said – but a clear ruling against it at the federal level could end the battle definitively.

“If a federal court has the trial and says that the law violates the due process and equal protection clauses of the constitution, North Carolina will no longer be able to say to transgender people which restrooms they should use, in public buildings or anywhere else,” Armijo said.

In March the American Civil Liberties Union of North Carolina, Equality North Carolina, a lesbian and two transgender men brought a federal civil rights suit over the law.

The two transgender men — Joaquín Carcaño of Carrboro and Payton McGarry of Greensboro — were born female and have not changed the sex designated on their birth certificates. They say using bathrooms and locker rooms for women could lead to harassment or violence.

In August U.S. District Court Judge Thomas Schroeder, who will preside over the case, issued a temporary injunction, blocking the UNC system from enforcing the bathroom provision for the three transgender plaintiffs. Schroeder said the plaintiffs were likely to succeed in arguing that HB2 violates Title IX – the federal law that prohibits discrimination on the basis of sex in federally funded education programs or activities. That buoyed the hopes of the law’s opponents.

But if it is repealed, the cause for the current federal lawsuit would disappear – and with it, a shot at that sort of definitive solution.

But it may not be that cut and dry.

One argument for a political rather than a court solution to the HB2 controversy is that the judgement in the current federal suit – and the various other suits on the issue now working their way through various courts up to the Supreme Court – could be rather narrow.

In issuing his injunction Schroeder said the plaintiffs have not made it clear they’re likely to succeed on their equal protection claim. And an incomplete victory in the courts could mean continuing and further harm to LGBT people impacted by the law.

“That’s one reason it would be better to handle something like this through politics rather than the courts,” Armijo said.

Still, a court ruling – however definitive – may also be the best political solution.

“One of the things I tell my students is, legislators don’t particularly care whether the laws they pass are constitutional,” Armijo said. “They just want to be able to go back to their districts or their states and say that they passed them.”

Equally, Armijo said, if a federal judge rules against a law that is passed, it could be a convenient out for conservative legislators who would like to see HB2 go away but can’t be seen to vote against it.

“If you’re a Republican state legislator and you’re from a conservative district, you don’t have any incentive to compromise,” Armijo said. “But if a federal court far away from your district says the law violates the constitutional rights of transgender people, it’s not your fault – and you can run against that.”

Dr. Michael Bitzer

Dr. Michael Bitzer, a professor of Political Science and History at Catawba College, agrees.

“I continue to think that it is ultimately going to be the courts making this call,” Bitzer said.

“At some point the courts are going to have to interpret and be very clear what ‘sex’ and ‘gender’ encapsulates,” Bitzer said. “It is this continuing framing of the issue based on different definitions that is driving a lot of this.”

Without a clear and definitive standard for how civil rights will be applied to transgender people – and even who qualifies as transgender – a political solution is unlikely, Bitzer said.

The current battle over transgender rights is best viewed as a part of continuing societal evolution on LGBT issues in general, Bitzer said, and the evolving body of law that is being created through that struggle.

“If you likened the gay marriage decision in equivalence to Brown v. Board of Education in the civil rights movement, it still took years to get the 1964 Voting Rights Acts and the Civil Rights Act,” Bitzer said. “Those were legislative remedies. I don’t see, in this current divided government at the national level, that being done. So the courts are going to have to decide these things.”

But there are important, deeply human arguments for repealing HB2 now rather than waiting for the courts to rule, said Chris Brook, legal director of the ACLU of North Carolina.

“Our perspective is that HB2 needs to be repealed now because it’s continuing to harm the three individuals who we represent and tens of thousands of other North Carolinians,” Brook said. “We don’t need HB2 to be a test case when the cost is that kind of harm.”

The current injunction only applies to Title IX institutions, Brook said – so every day that HB2 remains on the books, LGBT people not covered by that injunction continue to be harmed.

“The harm to our state’s economy and our state’s reputation is also clear,” Brook said. “But first and foremost HB2 is harming innocent North Carolinians for no good reason. No one should be comfortable with that.”

Even should the current case in North Carolina disappear, Brook said, he’s confident that the legal momentum is with those fighting for LGBT equality.

“There have been court cases on this going back to 2000,” Brook said. “I believe that the general trajectory is going to continue. I think that’s naturally going to occur.”

Bitzer and Armijo both said they agree with that.

“Once it hits the Supreme Court of the United States, the key vote on every major opinion dealing with gay rights and civil rights has been Anthony Kennedy,” Bitzer said. “That’s where the lynchpin of the court is going to be at this point. Whoever fills that ninth seat, vacated by Justice Scalia, that’s where the balance tips.”

Armijo said that looks good for LGBT advocates, long-term.

“Eventually one of these cases is going to get to the Supreme Court,” Armijo said. “Hillary Clinton is very likely to appoint the next Supreme Court justice. That would likely lead to a very stable five to four majority – maybe even 6 to 3 majority for maintaining the expansion of LGBT rights.”