NC law replacing HB2 is still a bathroom bill that discriminates, challengers claim

Opponents of a proposed replacement for House Bill 2 hold protest signs outside a room where supporters of the proposal held a press conference at the N.C. General Assembly in Raleigh, NC on Feb. 28, 2017.
Opponents of a proposed replacement for House Bill 2 hold protest signs outside a room where supporters of the proposal held a press conference at the N.C. General Assembly in Raleigh, NC on Feb. 28, 2017.

Editor’s Note: Since publication, the N&O has learned that passages from this story were taken in large part or in whole from “Texas Governor Revives Stalled Transgender Bathroom Bill” by the New York Times without attribution. This is a violation of our standards. We apologize to our readers.

North Carolina’s controversial House Bill 2 has been off the books for more than three months, but organizations that filed suit against the “bathroom bill” say the law that replaced it leaves transgender people in this state unprotected from discrimination after they were put in the middle of highly publicized political debate.

The American Civil Liberties Union and Lambda Legal, an LGBT rights law firm, filed documents in federal court on Friday seeking to amend a lawsuit filed last year against HB2 to center its claims on the law adopted in March to replace it.

The documents contend the law replacing HB2 “discriminates against transgender individuals with respect to one of life’s most basic and essential bodily functions – using the restroom – and, until December 2020, blocks local governments from protecting lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment and public accommodations.”

Democratic Gov. Roy Cooper and Republican legislative leaders struck a deal to replace HB2 with House Bill 142 as a deadline approached to miss out on years of sports championships. The new law repealed HB2 but created a moratorium on local nondiscrimination ordinances through 2020 and left regulation of bathrooms, showers and changing facilities to state lawmakers, not the local school systems, universities, community colleges and other state agencies that had been setting their own policies.

House Speaker Tim Moore called the compromise “a very measured approach,” and Cooper said that although he wanted full repeal, the new law represented “important progress.”

But LGBT rights advocates described the legislative action in March as “fake repeal.”

Attorneys for the ACLU, ACLU of North Carolina and Lambda Legal want to amend the lawsuit filed a year ago by a transgender man who works at UNC-Chapel Hill, a lesbian law professor at N.C. Central University, a transgender man who is a student at UNC-Greensboro, a transgender teenage girl who is a student at the UNC School of the Arts and a lesbian couple in Charlotte.

The documents seeking to amend the case include two new challengers, a 41-year-old transgender woman from Raleigh and a 32-year-old bisexual man who lives in Carrboro.

“I don’t have the option to use the men’s restroom, and I don’t have the luxury to not think about my safety every time I use the women’s restroom,” Madeline “Maddy” Goss, the transgender woman from Raleigh, said in a statement. “I know all too well what can happen to a transgender person in the restroom because a stranger won’t just let you be. It’s even scarier now that there is so much confusion about which restrooms I can use and I worry that I am not safe to use any restroom in North Carolina because of this discrimination.”

Quinton Harper, of Carrboro, a 32-year-old community organizer and advocate for people living with HIV, said he decided to join the lawsuit because he thinks the law that replaced HB2 keeps a distressing environment in place.

“North Carolina is sending a message to LGBT people like me that we are not welcome here, that we are not deserving of protection from discrimination, and that we are not equally valued members of our communities,” Harper said in a statement.

The amended lawsuit names Cooper as one of the defendants instead of his predecessor who signed HB2 into law, Republican Pat McCrory.

“The Governor’s ultimate goal is statewide LGBT protections and he is going to continue working toward that,” Cooper’s spokesman Ford Porter said in a statement.

The complaint outlines the attempts to repeal HB2 after Cooper, a critic of the law, was elected. The documents also highlight the words of some lawmakers who would not support a repeal but voted for the replacement law.

Kevin Corbin, a Macon County Republican in the state House of Representatives, was one of the lawmakers highlighted in the complaint.

“On the day that he voted for HB 142,” the amended complaint says, “North Carolina state Rep. Kevin Corbin stated that H.B. 142 ‘is not a repeal of HB2. ... The bill clearly states that city councils like Charlotte and other government entities CANNOT regulate access of multiple occupancy restrooms, showers, or changing facilities. Only the N.C. General Assembly may enact bathroom ordinances. ...”

“What this essentially means is that the restroom provision of HB2 remains,’ ” the amended complaint quotes Corbin as saying.

Many of the claims made in the initial lawsuit over HB2 remain. The challengers argue the new law violates equal protection and due process rights guaranteed by the U.S. Constitution and prohibitions on discrimination based on sex under federal laws such as Title IX and Title VII.

Representatives from the ACLU and Lambda Legal discussed the amended complaint at a news conference in Raleigh on Friday morning.

“HB 142 is a wolf in sheep’s clothing, crafted to keep discrimination intact but sporting a new look,” said Chris Brook, legal director with the ACLU of North Carolina.

Much has changed since the adoption of HB2 in March 2016 and the filing of the initial lawsuit, including a new president in the White House.

In February, President Donald Trump’s administration withdrew protections for transgender students in public schools that President Barack Obama’s administration had put in place.

Then on March 6, the U.S. Supreme Court refused to hear the case of Gavin Grimm, a transgender high school student from Virginia who had sued to be allowed to use the boys’ bathroom at his school.

The action in federal court in North Carolina comes while Texas is engaged in a similar debate about transgender rights and protections to the one that raged in this state last summer.

Texas Gov. Greg Abbott, a Republican, called Texas lawmakers into a special 30-day session to consider an agenda that included a bathroom bill that would prevent municipalities from passing anti-discrimination ordinances designed to protect transgender people.

Opponents of the Texas proposal have pointed to what happened in North Carolina in the aftermath of HB2 – boycotts, cancellation of concerts and sporting events and large protests.

Supporters of the restrictions have used refrains similar to those repeated in North Carolina: claims that the proposed laws would protect public safety and privacy in public buildings. They also argue that economic effects from the boycotts have been exaggerated.

As in North Carolina, critics and advocates of the Texas proposal expect a series of lawsuits if the legislation is adopted – more legal challenges that could further define the rights of transgender people in this country.

Dan Forest, North Carolina’s lieutenant governor and a strong advocate of HB2, went to the Texas capital in March and claimed the economic impact narrative had been overblown.

But an analysis by The Associated Press published days before the repeal of HB2 based on an examination of public records and interviews with business leaders who said that they had canceled projects because of the bill, estimated that North Carolina would lose more than $3.76 billion over a dozen years.

Staff writer Matthew Adams contributed to this report.

Anne Blythe: 919-836-4948, @AnneBlythe1