Lawsuit says HB2 effects still felt
Posted July 21
Updated July 28
RALEIGH, N.C. — Transgender people in North Carolina are still effectively prevented from using restrooms matching their gender identity under a law that replaced the state's notorious House Bill 2 earlier this year, according to a lawsuit filed Friday.
The replacement law, House Bill 142 continues the harms of its predecessor by leaving restroom policies in the hands of state lawmakers and preventing local governments or school systems from setting rules or offering guidance, the complaint states.
"The vacuum purposefully created by H.B. 142 in effect maintains the ban of (the previous law) and encourages discrimination by both government and private entities and individuals," the lawsuit says. "The law offers no guidance to anyone except by implication and makes it impossible for a reasonable person who is transgender to know which restroom they can legally use."
North Carolina took House Bill 2 off the books in late March after a yearlong backlash that hurt the state's reputation and caused businesses and sports leagues to back out of lucrative events and projects. The compromise between Republican legislative leaders and Democrats led by Gov. Roy Cooper eliminated a provision that required transgender people to use restrooms in many public buildings corresponding to the gender on their birth certificates.
But the new law states that only the General Assembly – not local government nor school officials – can make rules for public restrooms from now on. Local governments are also prohibited from enacting new nondiscrimination ordinances for workplaces, hotels and restaurants until December 2020.
The ambiguity in the law is compounded by statements from Republican lawmakers that the new law would meet the same goals as House Bill 2, according to the lawsuit. It cites a statement from House Speaker Tim Moore that the replacement law ensures that "persons of the opposite sex cannot go into designated multi-occupancy restrooms" and could face criminal trespassing charges.
"H.B. 142 is a wolf in sheep's clothing, crafted to keep discrimination intact but sporting a new look," Chris Brook, legal director of the state chapter of the American Civil Liberties Union, said at a Friday news conference. "Local protections for transgender people have been effectively banned."
The lawsuit argues that the law violates constitutional due process and equal protection rights, as well as federal laws against discrimination in workplaces and schools. The filing is a revamped version of an existing lawsuit that challenged House Bill 2 in federal court. Most of the same parties remain from the previous complaint, with the addition of two new plaintiffs. Cooper is also named as a defendant.
"The Governor's ultimate goal is statewide LGBT protections, and he is going to continue working toward that," Cooper spokesman Ford Porter said in an email.
Since House Bill 142 went into effect earlier this year, sports leagues including the NBA, the Atlantic Coast Conference and the NCAA have said they would hold championship events in North Carolina again. The announcements of large business projects such as a 1,200-job expansion by Credit Suisse are a further indication that the state is repairing its image.
But the pain continues for transgender residents across the state, according to the lawsuit. For example, 28-year-old plaintiff and transgender man Joaquín Carcaño, who works for the University of North Carolina, has been unable to get an answer from his employer on whether he's permitted to use restrooms that are consistent with his identity since the new law passed, the lawsuit says.
"For many legislators, this (bathroom) discrimination was not a bug but a feature" of both House Bill 2 and House Bill 142, Brook said.
"It's kind of like waiting for something to happen – waiting for a charge to come down, waiting for a potential attack," Carcaño said. "I think it's just that uncertainty that creates a lot of fear and anxiety for us."
Among the new plaintiffs is Madeline Goss, a 41-year-old transgender woman who lives in Raleigh. Goss, whose transition included sex reassignment surgery, said the ambiguity in the new law leaves her more fearful for her safety than she was under House Bill 2.
"The vagueness of this legislation really creates an arena where anybody feels like they can discriminate against trans people, and that's really scary for me," Goss said. "H.B. 142 leaves me with a frightening feeling that anything can happen when I use the restroom in a public building, and Ii might need to defend myself from an attack."