By Lisa Keen
The legal rights of transgender people continue to dominate LGBT legal news these days, as several cases make their way toward the U.S. Supreme Court and stimulate public discussion.
Last month, in one of the most prominent of cases, a federal district judge issued an order that prevents the University of North Carolina from implementing a new state law that bars transgender people from using a public restroom that matches their gender identity.
LGBT legal groups and the U.S. Department of Justice filed lawsuits against the new law, H.B. 2, after it was signed into law in March. The law has three parts: Part 1, which restricts how transgender people can access public bathrooms; Part 2, which prohibits local non-discrimination laws against sexual orientation or gender identity discrimination by public contractors; and Part 3, which prohibits local non-discrimination laws against sexual orientation or gender identity discrimination in public accommodations.
A trial on those challenges to the law is set for November, and three transgender plaintiffs at the University of North Carolina sought an injunction at that school to retain the pre-HB2 status quo until the court can rule on the overall lawsuit.
On Aug. 26, U.S. District Judge Thomas Schroeder (an appointee of President George W. Bush) issued a preliminary injunction against the enforcement of Part 1 (regarding bathroom access).
Schroeder noted that “no party has indicated that the pre-HB2 legal regime posed a significant privacy or safety threat to anyone in North Carolina, transgender or otherwise.” Therefore, he said, his injunction simply returns to the pre-HB2 scheme until the court can rule whether Title IX’s prohibition on discrimination based on “sex” includes “gender identity.”
Schroeder said the transgender plaintiffs challenging HB2 “have made a clear showing that they are likely to succeed on their claim” that the bathroom access portion of the HB2 violates Title IX.
Schroeder also noted that existing state laws that prohibit people from indecently exposing themselves to others or peeping into or entering a bathroom designated for someone of the opposite sex are “straightforward and uncontroversial.”
“For transgender users, however, it is not clearly so,” wrote Schroeder, and most appear to have been accommodated at educational institutions on a case-by-case basis, “with educational institutions generally permitting them to use bathrooms and other facilities that correspond with their gender identity….” He noted the state had “not offered any evidence whatsoever” to illustrate any problems with the existing means of accommodating transgender persons.
“Rather, on the current record, it appears that some transgender individuals have been quietly using facilities corresponding with their gender identity and that, in recent years, State educational institutions have been accommodating such students where possible.”
On Aug. 29, Lambda Legal and other groups challenging HB2 said they would ask the Fourth Circuit U.S. Court of Appeals to extend that injunction to apply to all transgender people in North Carolina.
Other transgender litigation
* Texas Attorney General Ken Paxton has filed yet another lawsuit against a pro-LGBT policy of the Obama administration. On Aug. 23, he filed a complaint with the U.S. District Court for Northern Texas, challenging a new Health and Human Services regulation that interprets the word “sex” to include gender identity. On Aug. 21, in another Paxton-led lawsuit, a federal judge granted a temporary order blocking the Obama administration from taking any action against states that refuse to comply with its guidelines concerning treatment of transgender students in federally funded schools.
* On Aug. 16, U.S. Supreme Court Chief Justice John Roberts rejected a request by lawyers for a school district in Virginia to extend the deadline for their petition of appeal. In that case, Gloucester v. Grimm, the school district seeks to overturn a federal appeals court decision that said the Title IX prohibition of discrimination “on the basis of sex” in schools includes discrimination based on the gender with which a student identifies. In the petition it filed Monday, August 29, the Gloucester School Board said the high court should hear the case to resolve “the current nationwide controversy” over transgender access to bathrooms.
* On Aug. 15, a federal magistrate judge in Chicago heard arguments on preliminary issues in a lawsuit by parents and students at a Cook County high school who want to block a transgender female student from using the girls’ locker room and girls’ restrooms. The case, Students and Parents for Privacy v. U.S. Department of Education, is awaiting a trial before a federal judge for the Northern District of Illinois. The magistrate will recommend to that judge whether to grant a preliminary injunction to stop the transgender student’s access until after the trial.