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More opposition to North Carolina’s HB2

The Justice Department seeks to halt implementation of North Carolina’s viciously anti-LGBT law.

RedEquality

The billowing legal fight over North Carolina’s House Bill 2 continued to grow this week with the U.S. Department of Justice asking a federal judge to suspend the law pending the outcome of a trial.

The federal agency sued the state over HB2 on May 9. Late Tuesday night, saying the law is causing ongoing damage to lesbian, gay, bisexual and transgender individuals, a team of Justice Department lawyers asked U.S. District Judge Thomas Schroeder to set aside the law.

The motion for a preliminary injunction is the second filed in Schroeder’s court against HB2. The American Civil Liberties Union sought a similar court order on May 16 as part of its own legal challenge against the state.

Legal experts give differing estimates on when Schroeder might act. For now, the mounds of paper being filed in the dispute continue to grow, and HB2 shows signs of remaining a pivotal statewide political issue through the November elections.

The law, which requires transgender people in government facilities to use the restroom that matches the gender on their birth certificates, has spawned at least five lawsuits – pro and con – in two federal courts.

The Justice Department’s 70-page legal brief attempts to establish the urgency for Schroeder to act. As with the earlier ACLU argument, government lawyers claim HB2 violates federal anti-discrimination statutes and is causing “ongoing and serious” harm to the state’s LGBT community.

Brian Clarke, a faculty member at the Charlotte School of Law, says it’s highly possible Schroeder has been waiting for the federal government to follow suit so he can rule on both motions at the same time.

“I would be surprised if Judge Schroeder lets this ride for very long,” Clarke said. “Even though the courts don’t have an official clock ticking, a judge does not want an injunctive motion sitting there for months. The legal standard is that irreparable damage is happening now.”

[…]

The 4th Circuit Court of Appeals, which holds legal sway over the Carolinas and three other states, ruled in April that a Virginia transgender student could sue his school for forcing him to use a special bathroom – in essence upholding the federal government’s right to include gender identity under federal protection.

Wallace says the appeals court ruling did not deal with the “competing privacy interests” of other students and “does not help the ACLU case as much as the ACLU thinks it does.”

Clarke, however, said the decision leaves the North Carolina federal courts little leeway.

“Ultimately, Judge Schroeder will grant the injunction,” he said. “I don’t think he has a choice.”

I think the first lesson to take from this is to be mistrustful of bills called HB2. I’m not saying that any HB2 is automatically bad, but I’m not not saying it, either.

The Justice Department is not alone in attacking North Carolina’s HB2.

Airlines, hotels and tech leaders are among the 68 leading companies that on Friday filed a friend-of-the-Court brief opposing North Carolina’s law that requires individuals to use the bathroom that corresponds to their sex at birth.

Written by conservative legal dynamo Ted Olson, a veteran of Republican George W. Bush’s Administration, the filing urges the courts to strike down the North Carolina law as discriminatory and denies the legitimacy of transgender residents. The businesses assert that the bathroom provision runs counter to many of their non-discrimination policy and pro-diversity statements. Plus, they’re just bad for business and alienate LGBT customers and employees.

Among the companies signing the measure are American and United Airlines, Hilton and Marriott hotels, and tech leaders Apple, Cisco, Dropbox, eBay, IBM and Microsoft. Big business has been vocal in opposition to such laws, and many firms have been successful in applying political pressure in places like Indiana and Alabama. But, to this point, they have been running into a wall against North Carolina’s law, known as House Bill 2, or HB2.

“HB2 is a law that forces transgender persons to deny, disclaim and conceal their gender identity, particularly whenever they wish to use single-sex restroom facilities on state or local government property,” said Olson, who represented Bush’s 2000 recount case and then his Justice Department before the Supreme Court. “In so doing, it forces transgender people to deny a fundamental feature of their character and personhood in the name of safety concerns that are wholly illusory and a slap in the face to all transgender persons who are simply trying to live their lives consistent with who they really are.”

That argument is key to the 44-page filing. “H.B. 2 discriminates against the roughly 44,000 transgender people in North Carolina by denying them access to single-sex facilities that accord with their gender identity but not their biological sex whenever they set foot in a facility owned or operated by any agency or arm of the State or a local government. In so doing, H.B. 2 sends a resounding message to the public that transgender persons—people simply trying to live their lives consistent with who they are—are ‘other’ and outcasts whose gender identity and human dignity are undeserving of recognition and respect on government property,” the companies write. “It is no accident that H.B. 2’s anti-transgender message and effects have prompted some commentators to coin it the most anti-LGBT legislation in the country.”

There are two points to note here. One is that laws like this are hugely divisive and really unpopular in the business community, which is normally quite friendly to Republican interests. Two is that between Mississippi, whose own anti-LGBT law was recently struck down, and North Carolina where theirs seemingly will be, is that passing such laws is ultimately an exercise in futility. They are expensive, divisive, damaging failures. Unfortunately, it seems clear that the culture warriors in this state will learn nothing from any of it. The only lesson they will take seriously is one delivered at the ballot box. I continue to believe that the opportunity is there for Democrats to pry the business community loose from the GOP grip, on the grounds that only they are willing to take on issues that business people say are important to them, like immigration reform, school finance, investing in infrastructure, and generally maintaining a business climate that isn’t hostile to a significant fraction of the workforce and marketplace. Julian Castro could be the candidate to do that if he’s in a position to run for Governor in 2018. I’ve no idea what Plan B is if he isn’t in a position to run, but the opportunity will still exist if someone wants to take it. Perhaps a good showing in the 2016 elections will help spur someone on.

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