Metro Weekly

Transgender rights may depend on Supreme Court makeup

Transgender people's ability to access restrooms may rely on how Justice Anthony Kennedy votes

U.S. Supreme Court - Photo: Ian Koski, via flickr.
U.S. Supreme Court – Photo: Ian Koski, via flickr.

Prior to this year’s gubernatorial election in North Carolina, it seemed like the state’s anti-LGBT HB 2 law was stealing much of the spotlight and driving the conversation on who should lead the state.

But even with the presumptive victory of Democrat Roy Cooper over Republican incumbent Pat McCrory, who signed HB 2 into effect, the law is almost certain to remain in place.

That’s because Republicans continue to have a stranglehold on the state legislature, due in part to aggressive gerrymandering.

And while individual Republicans have indicated some interest in revisiting or fixing parts of HB 2, Republican legislative leaders have not, according to The Charlotte Observer.

“Voters voted based on the economy,” House Speaker Tim Moore told the N.C. Insider. “I continue to believe that HB 2 has been misrepresented by the left and the media and was blown out of proportion.”

The law is currently being challenged in two separate lawsuits, one brought by the department of justice, and another by students and staff members at the University of North Carolina.

But the UNC case has been placed on hold while the U.S. Supreme Court weighs in on the case of Gavin Grimm, the Virginia transgender high school student who is suing his local school board to be allowed to use the boys’ restroom.

Because Virginia and North Carolina are both under the jurisdiction of the 4th U.S. Circuit Court of Appeals, a ruling by the Supreme Court on Grimm’s case would influence the outcome of the HB 2 case.

With the election of Donald Trump as president, it is all but expected that the Justice Department, under the leadership of the new Attorney General, will drop its opposition to HB 2 — although the second suit, dealing with the UNC students and staffers, would continue to challenge the law.

What the decision may come down to then, is timing, as well as the makeup of the Supreme Court at the time Grimm’s case is heard.

President-elect Trump will take office in January, and will likely begin setting about naming a replacement for deceased Justice Antonin Scalia.

Oral arguments in the Grimm case are expected to take place in February or March, according to The Daily Press. The court could either decide to hear the case with eight members, or delay it further until a ninth member is seated — which will depend on how rapidly the Senate confirmation process goes.

If the court were to hear the case with only eight members, either a 5-3 decision or a split 4-4 decision would allow Grimm to use the boys’ restroom. As a result, judges in states covered by the Fourth Circuit — Virginia, North Carolina, South Carolina, West Virginia and Maryland — would be inclined to rule in favor of transgender plaintiffs in any cases similar to Grimm’s.

In that case, HB 2’s provisions requiring transgender people to use only facilities that match their biological sex at birth could be found to be unconstitutional.

On a nine-member court, the outcome would depend on which individual Trump selects for the high court. He is expected to name a socially conservative justice in the mold of Scalia, who would likely rule against any transgender plaintiff, along with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.

The four Democratic-appointed justices are expected to favor transgender rights.

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