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Legal battle over HB2 returns to federal court in Winston-Salem on June 25

Legal battle over HB2 returns to federal court in Winston-Salem on June 25

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North Carolina’s House Bill 2, widely decried as discriminatory against gay and transgender people, may have been repealed, but the legal fight it led to is far from over.

On June 25, a federal judge will hold a hearing on pending motions in U.S. District Court in Winston-Salem. State Republicans and the president of the UNC system want the lawsuits against the state to go away, but plaintiffs represented by the ACLU of North Carolina and Lambda Legal argue that the law legislators replaced HB2 with doesn’t do enough to protect LGBT people.

Last year, state legislators repealed House Bill 2, the 2016 law known mostly for requiring transgender people to use restrooms, locker rooms and showers at schools and government buildings that correspond to the sex on their birth certificates, rather than the gender with which they identify. The law also prohibited local governments from passing local ordinances that extended legal protections to LGBT people.

HB2 also established a statewide nondiscrimination ordinance that excluded lesbian, gay, bisexual and transgender people. One part of the law, which was later repealed, kept people from filing workplace discrimination lawsuits in state courts. State Republicans have defended HB2 as a common-sense law that protects privacy and promotes public safety.

An immediate backlash resulted, with Bruce Springsteen and other big-time artists cancelling concerts and businesses such as Paypal rescinding plans to expand in North Carolina. The NBA, NCAA and the ACC pulled sporting events from North Carolina. The ACLU of North Carolina and Lambda Legal filed a federal lawsuit on behalf of plaintiffs, including a then-high school student at UNC School of the Arts, and the U.S. Department of Justice filed a separate lawsuit against HB2.

Last year, state legislators repealed HB2 and replaced it with House Bill 142, which got rid of the restroom, locker room and shower use requirements and prohibited local governments from putting forth any anti-discrimination ordinances through Dec. 1, 2020. The law appeared to calm the public controversy, but it did not quell the legal fight.

Attorneys for House Speaker Tim Moore, R-Cleveland, and Senate Leader Phil Berger, R-Rockingham, have filed motions to dismiss the lawsuits against House Bill 2, arguing that the lawsuits are moot because the law was repealed due to the new law. The U.S. Department of Justice dropped its complaint after the passage of HB142. Margaret Spellings, the president of the UNC system, has filed a motion to dismiss the lawsuits.

But plaintiffs filed an amended lawsuit targeting HB142.

Judge Thomas D. Schroeder will be hearing those motions on June 25. Schroeder issued a preliminary injunction against HB2 in August 2016. It was a narrow ruling that only blocked part of the law and prohibited the UNC system from enforcing the restroom portion against Hunter Schafer, then a high-school student at UNC School of the Arts, and two other transgender plaintiffs.

The plaintiffs argue that HB142 “effectively continued, rather than ended, HB2’s discrimination against LGBT individuals.” And, they argued, the new law creates confusion on whether transgender people will face criminal prosecution for using restrooms in public buildings that match their gender identity. They say HB142 should be “voided for vagueness” since it “provides no guidance for what conduct may be subject to criminal or other penalty.”

Plaintiffs also claim that to comply with either HB2 or HB142 restroom requirements, transgender people have to undergo medical procedures, including gender confirmation surgery, “that may not be medically appropriate or available in order to access facilities consistent with their gender identity ... or do not have health insurance coverage for it and cannot afford to pay for the surgery out of pocket.”

North Carolina law requires proof of sex reassignment surgery before allowing the gender marker on a birth certificate to be changed.

Mike Meno, a spokesman for ACLU of North Carolina, said Schroeder has not yet ruled on a consent decree with Gov. Roy Cooper that would ensure transgender people can use restrooms corresponding to their gender identity at facilities run by executive branch agencies that oversee the environment, transportation, Medicaid and others. Legislative leaders and the state university system have not signed the agreement.

Schroeder is not expected to take up the consent decree on June 25, Meno said.

mhewlett@wsjournal.com 336-727-7326 @mhewlettWSJ

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