Legal standoff over controversial North Carolina ‘bathroom’ law

RUTH GREEN

A new law discriminating against transgender people in North Carolina has sparked a legal spat with the US Department of Justice that has quickly transformed the issue into a national and international debate.

On 23 March North Carolina’s Governor Pat McCrory signed into law House Bill 2 (HB2), the Public Facilities Privacy & Security Act, which imposes restrictions on civil rights, including requiring people to use public toilets that correspond to the sex listed on their birth certificate – a move that has been labelled as discriminatory towards transgender people.

In early May the US DoJ issued a letter to McCrory and other public officials in North Carolina asking them to abandon the law, saying it violated federal civil rights statutes. McCrory responded by filing a law suit, accusing the DoJ of ‘baseless and blatant overreach’.

Within days US Attorney General Loretta Lynch, who will be a keynote speaker at the IBA Annual Conference in Washington in September 2016, had condemned the law as ‘state-sponsored discrimination’ and filed a federal complaint against HB2.

Sarah Cleveland, a member of the IBAHRI council and professor of human and constitutional rights at Columbia Law School in New York, says the DoJ’s intervention highlights how significant the debate over transgender rights now is in the US.

‘I think the Justice Department lawsuit is a very significant step by this administration in the enforcement and protection of equal civil rights for transgender people,’ she says. ‘It is a milestone in the development of civil rights law in the United States.’

The legal spat comes amid a groundswell of public and corporate support to overturn the law. Several high-profile musicians have pulled out of concerts in North Carolina in protest. Large businesses such as Bank of America and Apple condemned the law, while PayPal and Deutsche Bank both announced they were cancelling plans to expand in the State.

However, Katherine Franke, a law professor and director of the Center for Gender and Sexuality Law at Columbia, says such headline-grabbing boycotts fail to address some of the other discriminatory aspects of the legislation.

‘It’s important to recognise that HB2 certainly contains very offensive language around transgender peoples’ rights, but it does much, much more than that,’ she says. ‘The law also eliminates any possibility for municipal governments to enact laws creating a living wage, protect domestic workers or provide partnership laws. Any law that has to do with employment now must be handled by the State – it can no longer to be handled by local government.

‘In the US we’re seeing really interesting innovation on the municipal level around expanding workers’ rights and HB2 has stopped that in its tracks in North Carolina. So it’s interesting to me that the companies that are boycotting are only focusing on the transgender issue. It’s an easy case for them to sign up for when the issue is only transgender people using bathrooms as it doesn’t affect their bottom line and they can have a reputational bump for standing on the right side of the civil rights issue, but the larger issues in this law are much more extensive and sweeping.’

Although the Federal Government stressed it will not withdraw funding to the State, the North Carolina Department of Public Safety or the University of North Carolina – which are also named on the complaint – while the law is being reviewed, it wouldn’t be the first time federal funding has been withheld on civil rights grounds notes Hansel Pham, co-chair of the IBA North America Regional Forum and partner at White & Case in Washington DC.

‘In the 1960s, for example, the Federal Government denied funds to more than 100 school districts in the South that refused to integrate black and white students,’ he says. ‘This denial of funds worked dramatically well: all of those districts eventually adopted integration plans.’

Timothy Wilson, an associate at White & Case in DC, adds that it’s difficult to predict whether mounting corporate pressure or the pending litigation is more likely to force a rethink in the law: ‘Should the Federal district court in North Carolina agree with the Justice Department’s interpretation of the Civil Rights Act as including transgender individuals, then it is likely that the court would preliminarily enjoin the enforcement of the law and ultimately strike it down,’ he says. ‘However, the corporate boycott could outpace the Federal litigation because Governor McCrory is up for re-election in November.’ 

The DoJ complaint also comes as the Obama Administration makes increasing moves towards protecting and promoting transgender rights, notes Wilson.

‘The Justice Department’s suit against North Carolina appears to be the first suit filed by the United States against a State for the purpose of enjoining the enforcement of a State law deemed discriminatory to LGBT persons,’ he says. ‘The lawsuit demonstrates the seriousness of the current Administration in defending LGBT rights, specifically transgender rights.’

The US Departments of Education and Justice recently issued a letter to high schools across the country asking them to guarantee transgender students access to bathrooms that match their gender identity. This followed a decision in April in the Fourth Circuit Court of Appeals – the same federal appeals court where North Carolina sits – which ruled in favour of allowing bathroom access for a transgender student who was born female and wished to use the boys’ facilities at a high school in Virginia.

This victory could bode well for the DoJ, according to Franke: ‘It was a kind of happy coincidence for the Federal Government that North Carolina is located in a circuit that’s already ruled on this issue, but the Supreme Court hasn’t, so we’ll see what happens if it goes up to the Supreme Court.’

Franke says there is a precedent in the US for legal standoffs played out in bathrooms to be heard in the Supreme Court. ‘Bathrooms have become this place for articulating racial and sexual anxiety quite commonly in our history,’ she says. ‘In the mid-1950s when the Supreme Court in the Brown v Board of Education case said we can’t racially segregate people anymore, the Federal Government said to local governments that they had to desegregate their bathrooms on the basis of race – and the white backlash was vicious.’

While the Supreme Court could decline to review the Fourth Circuit’s decision, Pham thinks it’s likely to be accepted.

‘First, this lawsuit involves a dispute between the United States and a State over the validity of a State’s law,’ he says. ‘The Supreme Court generally does not like the settlement of such major disputes left to lower Federal courts because it is seen as disrespectful to the limited sovereignty of State governments. Second, there is disagreement between the US Courts of Appeals as to whether the protections of the Civil Rights Act should extend to transgender individuals. The Court of Appeals for the Sixth Circuit has already held that the Act protects transgender individuals from discrimination, while the Court of Appeals for the Tenth Circuit has held the very opposite.  Therefore, no matter which way the Fourth Circuit rules, the losing party can argue that there is conflicting precedent on the issue and therefore only the Supreme Court can resolve the uncertainty once and for all.’

Michael Kirby, vice-chairman of the IBAHRI Council, hopes HB2 will soon be a thing of the past. ‘It is astonishing to most people who stop and think about it that the legislature in North Carolina should have nothing better to do than to try to enforce on the tiny minority of transgender people the use of toilets by reference to the users’ birth certificates,’ he says. ‘As if there were not multiple problems more deserving of such legislative priority.

‘Eventually we will look back on this era with a mixture of astonishment and shame. Meantime the law and lawyers have a role to play in protecting these minorities and upholding their rights. And not just in North Carolina.’

Indeed, Franke says HB2 is in keeping with a growing tide of state-wide legislative suppression of transgender rights across the US.

‘There are at least 27 other legislatures with similar bills pending, so this is a concerted effort across the country to attack transgender rights as part of a larger backlash against the victories of same-sex couples to marry in the Supreme Court,’ she says. ‘Those opponents realise they’ve lost that battle so they’ve shifted their tactics to what is an allied movement against a more vulnerable party – the transgender movement.’