Three individuals and two LGBT advocacy groups early Monday morning filed a lawsuit in federal court challenging the recently passed North Carolina law that nullified local LGBT rights ordinances and restricted transgender people’s access to restrooms.
“By singling out LGBT people for disfavored treatment and explicitly writing discrimination against transgender people into state law, H.B. 2 violates the most basic guarantees of equal treatment and the U.S. Constitution,” the lawsuit argues.
The complaint argues the law violates people’s equal protection, privacy, and liberty rights under the Fourteenth Amendment to the U.S. Constitution and their civil rights under Title IX of the Education Act of 1972.
The lawsuit is asking for a declaratory judgment that the law violates the Constitution and Title IX and an injunction against enforcement of the law.
The case was filed overnight in the U.S. District Court for the Middle District of North Carolina on behalf of Joaquín Carcaño, a transgender man who works at the University of North Carolina-Chapel Hill; Payton Grey McGarry, a transgender man who is a student at the University of North Carolina-Greensboro; and Angela Gilmore, a lesbian who is the associate dean for academic affairs at North Carolina Central University. Also named as plaintiffs are the ACLU of North Carolina and Equality North Carolina.
The defendants include Gov. Pat McCrory, Attorney General Roy Cooper, and the University of North Carolina and several of its senior officials.
The lawsuit was assigned to Judge Thomas D. Schroeder, who was appointed to the bench by President George W. Bush.
The American Civil Liberties Union, ACLU of North Carolina, Lambda Legal, and Equality North Carolina are all backing the litigation.
On March 23, Republican state legislators convened a one-day legislative session to pass House Bill 2 with the explicit goal of overriding an ordinance in Charlotte. The city ordinance would have protected LGBT people from discrimination in housing and public accommodations.
McCrory, Republican legislative leaders, and Christian conservatives had claimed the public accommodations portion of the Charlotte ordinance posed a safety threat by allowing transgender women — whom they called “men” — to prey on women and girls, especially in bathrooms.
To negate the city’s ordinance, the new North Carolina law decrees that local jurisdictions may not extend protections to classes of people not already covered by the state. The state law approved Wednesday provides “equal access to public accommodations” based on various characteristics — including race, religion, color, and biological sex. However, the law omits coverage based on sexual orientation or gender identity and specifies that designating bathrooms based on “biological sex” is not discrimination.
The lawsuit argues that the new law denies LGBT people equal protection rights under the Fourteenth Amendment because the new law was designed to single LGBT people out for discrimination and less protection.
“H.B. 2 was motivated by an intent to treat LGBT people differently, and worse, than other people, including by stripping them of the protections afforded by the City of Charlotte’s Ordinance and precluding any local government from taking action to protect LGBT people against discrimination,” the lawsuit alleges. By doing so, it continues, “H.B. 2 imposes a different and more burdensome political process on LGBT people than on non-LGBT people who have state protection against identity-based discrimination.”
The new state law also mandates that single-sex restrooms and locker rooms in public schools and government buildings only be used only by those who have a corresponding sex listed on their birth certificate.
In detailing the consequences of these provisions, the lawsuit states, “The only restrooms on the floor where Mr. Carcaño works at UNC-Chapel Hill are designated either for men or for women. There are no restrooms in the building where Mr. Carcaño works that are not designated either for men or women. All the restrooms in the building are multiple occupancy.”
The lawsuit continued: “If Mr. Carcaño could not use the men’s restroom at UNC-Chapel Hill, he would have to leave campus and find a local business in order to use the men’s restroom; or he would have to locate a restroom not designated for either men or women elsewhere on campus.”
The lawsuit argues that the new law violates the rights of transgender people under the Constitution and existing civil rights laws because it denies those students access to school facilities that reflect their gender identity.
“H.B. 2’s discrimination against transgender people based on sex is not substantially related to any important government interest,” the lawsuit argues in discussing the constitutional claim. “Indeed, it is not even rationally related to any legitimate government interest.”
It also asserts that the law violates Title IX as to Carcaño and McGarry. For example, the lawsuit alleges that the law denies McGarry “the benefits of, and subjects him to discrimination in educational programs and activities at Defendant’s constituent campus, UNC-Greensboro, ‘on the basis of sex’” — a violation of Title IX.
Under President Obama, federal agencies have interpreted Title IX — which bans discrimination in publicly funded schools on the basis of sex — to ban transgender discrimination as a form of sex discrimination.
While some individual school districts have fought back against the federal interpretation of the law, North Carolina is the first state to enact a law banning transgender students from school restrooms that correspond with their gender identity.
The lawsuit also alleges two additional constitutional violations regarding the “biological sex” bathroom restrictions of the law: first, a violation of the plaintiffs’ right to privacy; and, second, a violation of the plaintiffs’ right to “liberty and autonomy in the right to refuse unwanted medical treatment.”
Within hours of House Bill 2’s passage, it was signed into law by McCrory — leading to demonstrations in front of the governor’s mansion and outcry from corporations, which stated that the law was designed to allow LGBT discrimination.
The state’s attorney general, Cooper, is charged with defending the state in any litigation but already has denounced the new law. “That North Carolina is making discrimination part of the law is shameful,” said Cooper, a Democrat who also is running for governor. “It will not only cause real harm to families, but to our economy as well.”
In the 17 states and 225 cities with laws banning LGBT discrimination, there are no known instances of the rules being used to defend or facilitate predatory behavior in bathrooms or locker rooms.
In response to the growing backlash, McCrory issued a statement on Friday defending the law.
“North Carolina is one of at least 37 states like Virginia where cities and towns cannot pass rules or regulations that exceed the authority given to them by the state,” said the governor’s press release. “In passing the bathroom ordinance, Charlotte was exceeding its authority and setting rules that had ramifications beyond the City of Charlotte.”
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