As many LGBT North Carolinians and their allies feared, November’s election may have radically changed the legislative and legal future of the controversial House Bill 2.
The bill, which excludes lesbian, gay, bisexual and transgender people from statewide nondiscrimination protections, has been at the center of a political firestorm since then-Gov. Pat McCrory signed it into law in March.
Its most controversial provision, a requirement that transgender people use restrooms and locker rooms in public buildings that match the sex on their birth certificates rather than gender identity, has generated international headlines, boycotts, business losses and a federal lawsuit.
But under a Trump administration, the optimism of some HB2 critics about that lawsuit’s potential – and the chances for a full repeal of the law – has begun to wane.
“I suspect federal intervention in the case of HB2 and other laws like it won’t continue,” said Enrique Armijo, constitutional law professor at Elon University School of Law. “The prospects of those cases being successful long-term have probably changed, depending on the new administration and appointments to the Supreme Court.”
In March the American Civil Liberties Union of North Carolina, Lambda Legal, 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 assigned female at birth 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.
The lawsuit has since been expanded to include Hunter Schaefer, a 17-year-old from Winston-Salem and married couple Beverly Newell and Kelly Trent of Charlotte.
In May the U.S. Justice Department informed McCrory and state lawmakers HB 2 violates federal law and asked the state to agree not to enact or enforce the bill, which, among other things, requires people to use restrooms that correspond to their at-birth gender. The department gave the state a deadline to respond with billions in federal education funding on the line.
Instead, McCrory and state legislators filed a lawsuit asking a court to block Justice Department action that could threaten that funding.
The Justice Department filed its own lawsuit seeking a statewide ban on enforcement of HB 2.
In a press conference, U.S. Attorney General Loretta Lynch, a Greensboro native, condemned the law.
“You’ve been told that this law protects vulnerable populations from harm — but that just is not the case,” said Lynch. “Instead, what this law does is inflict further indignity on a population that has already suffered far more than its fair share.”
In what became a landmark moment for transgender rights, Lynch used the press conference to speak directly to the transgender community itself.
“Some of you have lived freely for decades,” Lynch said. “Others of you are still wondering how you can possibly live the lives you were born to lead. But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
“Please know that history is on your side,” Lynch said. “This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy – but we’ll get there together.”
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.
The ACLU is tentatively scheduled to argue an appeal to expand Shroeders’ ruling before the Fourth Circuit in May.
The momentum seemed to be with HB2’s opponents – particularly if Hillary Clinton won the White House, her administration continued to put federal power behind the push for expansion of LGBT rights and her appointees to the Supreme Court shared that view.
But Armijo and other legal experts say the Trump victory, likely confirmation of Jeff Sessions as Attorney General and Trump appointments to the Supreme Court could reverse the momentum on HB2 and transgender rights.
“There’s probably still a majority on the Supreme Court, even after Trump’s appointment to fill the [deceased Justice] Antonin Scalia seat, who would support the idea that a law like HB2 violates the equal protection clause – because of [Justice] Anthony Kennedy,” Armijo said.
Kennedy was appointed by President Ronald Reagan, but has frustrated many political conservatives by leading a majority on the court to expand civil rights protections for LGBT people. That includes the landmark Obergefell v. Hodges decision, which established that same-sex couples have a right to marry. That decision, and a number of others celebrated by LGBT advocates, were 5-4 rulings even when Scalia was on the court.
“The bad news is that Anthony Kennedy is 80 years old,” Armijo said. “And another of the votes for gay rights, Ruth Bader Ginsburg, is an 83-year-old woman who recently had pancreatic cancer.”
The broader question – whether federal protections will be found to apply to transgender people under current federal civil rights law – is more complicated and fragile. The hope for winning broad application of federal civil rights laws for transgender people becomes less likely with each appointment Trump makes.
“You could very easily see a 5-4 conservative court saying the right to equal protection doesn’t apply to someone who is transgender,” Armijo said. “Over the next few years that’s not only possible but probably likely.”
TRUMP ON HB2, SUPREME COURT APPOINTMENTS
How a Trump Supreme Court appointee might see the issue is difficult to tell, Armijo said, but it would be difficult to imagine him appointing a conservative justice with more liberal views on transgender rights.
“It’s very difficult to understand some of the president elect’s positions because they seem to change and they seem not that internally consistent,” Armijo said.
For example, Armijo said, Trump has said he considers the Obergefell v. Hodges decision to have settled the same-sex marriage question: it is now the law of the land. But he does not consider the Rowe v. Wade decision on abortion, made more than 40 years ago, to be settled law.
“It’s hard to imagine you could appoint someone who would vote to uphold Obergefell but overturn Rowe,” Armijo said. “So it’s hard to imagine how the president-elect thinks his appointee might vote on something like HB2.”
Back in April, when HB2 was passed, Trump came out against the law.
“North Carolina did something that was very strong, and they’re paying a big price,” Trump said during an interview on NBC’s “Today Show.”
“Leave it the way it is,” Trump said. “North Carolina, what they’re going through, with all of the business and all of the strife – and that’s on both sides – you leave it the way it is. There have been very few complaints the way it is. People go, they use the bathroom that they feel is appropriate. There has been so little trouble. And the problem with what happened in North Carolina is the strife and the economic punishment they’re taking.”
Trump went further, saying transgender celebrity Caitlyn Jenner, a Trump supporter, could use any restroom she wished in Trump tower.
Those comments put him in the crosshairs of social conservatives as he sought the GOP nomination, with primary opponent Ted Cruz seizing on them to call Trump “no different from politically correct leftist elites,” on the issue.
“He has succumbed to the Left’s agenda,” Cruz said. “Which is to force Americans to leave God out of public life while paying lip service to false tolerance.”
Trump later reversed himself on HB2.
“The state, they know what’s going on, they see what’s happening, and generally speaking I’m with the state on things like this,” he told the News & Observer. “I’ve spoken with your governor, I’ve spoken with a lot of different people, and I’m going with the state.”
TURMOIL CONTINUES IN THE CAPITOL
Leaving the issue to the state has not been so simple.
Last month, during a tumultuous series of extra legislative sessions, the North Carolina General Assembly failed to repeal HB2. Accusations and recriminations abounded, but it has become clear that the split on the issue is largely in the Republican majority’s caucus.
A growing number of Republican lawmakers began to call for a repeal or revision of HB2 in the wake of boycotts over and business losses related to the law that cost the state more than $500 million, including the loss of NCAA and ACC championship events.
But as lawmakers tried to put together a deal to repeal the law, pressure mounted from the political right and left. Emboldened by the Trump victory and feeling that federal pressure may soon dissipate, a number of GOP lawmakers decided to stand against any repeal even as GOP leadership in Raleigh tried to negotiate it.
Groups like the N.C. Values Coalition pressed lawmakers not to repeal the law under any circumstances. Lt. Gov. Dan Forest stood with them, having characterized it not as a matter of politics but of right and wrong.
Groups like Equality North Carolina and the Human Rights Campaign pushed for full and unequivocal repeal of the law, a position supported by new Gov. Roy Cooper.
In the wake of the repeal’s failure, N.C. Rep. David Lewis (R-Harnett), the powerful chair of the House Rules Committee, acknowledged the divide within his party was to some extent geographic and cultural.
“There was a divide – that’s fair to say – in the Republican caucus,” Lewis said.
“I do think there is a gap in understanding,” Lewis said. “There’s a gap in maybe appreciation of some of the challenges that some of our fellow citizens face that we need to educate ourselves on and we need to explore more fully.”
“We’re not quite there yet,” Lewis said of repeal. “I hope we will consider it and get to that point, after some considerable conversation, when we come back in January.”
But there are plenty of GOP lawmakers who don’t feel they need more education or understanding.
“I feel like I’ve been unfairly maligned for a year now,” said Rep. John Blust (R-Guilford). “They think we did this for political reasons. But I never wanted this battle I never asked for it.”
Blust said he blames LGBT activists for pushing the issue of transgender restroom access, the Charlotte City Council for passing an
ordinance guaranteeing it and national LGBT groups for pressuring corporations and sports organizations to boycott the state.
A lot of those people won’t consider legitimate concerns about changing the way gender is legally viewed in the state, Blust said. What would prevent someone from professing to identify as one gender and gaining access to a school locker room, he asked, only to later profess to identify as another? What would be the standard of proof for someone’s gender identification? Would gendered sports teams have to be abolished to conform to a new standard with gender as a spectrum rather than a binary?
“I’m not willing to go there,” Blust said. “As a father of a seven year old girl, I’m not willing to go there. I’m not a bad guy. I don’t hate. But I’m not going there.”
Opponents of HB2 seem to be winning the public relations war because they have a stronger lobby, Blust said.
“I don’t believe the NCAA on its own, without pressure, would have done anything,” Blust said.
“I don’t think they care that much. But when they’re pressured, it was sort like the Al Sharpton, Jesse Jackson shake-downs…it’s easier to give them what they want and make them go away. I’ve told some of these family groups – until you get a way to pressure them back, we’re going to continue to lose.”
Those groups are certainly trying – and have not been resting since the repeal fell through.
In the wake of its failure the N.C. Values Coalition vowed to continue fighting any repeal throughout the new legislative session.
“As the 2017 legislative long session convenes, our message to lawmakers is clear, “Stop Playing Politics with Privacy”’” the group said in a statement.
“Governor Cooper, leaders of the General Assembly and the Senators who voted to repeal HB2 in December should recall our state’s strong economy and resist the bullying of immoral sports organizations and fringe activists who only seek to replicate Charlotte-like ordinances and their radical agenda in every municipality across our state,” the statement said. “Our coalition cannot and will not support any efforts by Governor Cooper or any lawmaker to sacrifice the privacy, safety, or freedom of young girls by forcing them to use the bathroom, shower, or change clothes with grown men.”
LGBT advocates say that sort of language fosters hostility toward transgender people. Further, they say, it is rooted an outdated belief – as repeated in the state filings in the federal lawsuit over HB2 – that transgender people are mentally ill and potentially dangerous.
“Every single day, HB2 has put LGBTQ North Carolinians at risk for discrimination and violence. North Carolina voters have sent a clear message by rejecting Pat McCrory, the face of HB2, at the ballot box,” said Equality NC Executive Director Chris Sgro, a former state representative.
As long as lawmakers continue to repeal the law all North Carolinians will continue to suffer the economic consequences of HB2, Sgro said.
“The North Carolina General Assembly has but only one option – a full and complete repeal of HB2,” Sgro said.
Human Rights Campaign Chad Griffin agreed.
“North Carolinians have resoundingly rejected the hate and discrimination of HB2, and it’s far past time for their elected representatives to do the same,” Griffin said. “Those who stand in the way of a clean vote to fully repeal HB2 are directly responsible for the continued harm this destructive law inflicts on the people, reputation, and economy of the state of North Carolina. HB2 must be repealed, and it must be repealed now.”
But some in the General Assembly say they believe a repeal can be worked out at the state level rather than in the federal courts.
“I haven’t given up hope there,” said N.C. Sen. Jeff Jackson (D-Mecklenburg) in a recent interview with N.C. Policy Watch. “I really think we can work out a repeal. I think we were relatively close.”
“The one thing that still has not happened that could really increase the chances of that happening is if we get all the parties in a room together,” Jackson said. “People won’t believe this, but that still has not happened.”