Metro Weekly

Law that “repealed” HB 2 in name only being challenged in court

Plaintiffs argue that replacement law is still unconstitutional and needs to be overturned

Photo: Flinga, via Wikimedia.

Four LGBTQ North Carolinians who had originally sued to block and overturn North Carolina’s controversial HB 2 law are now targeting the law that claims to have “repealed” the law while keeping in place some of its most pernicious provisions.

Although the American Civil Liberties Union and ACLU of North Carolina, which are  representing the plaintiffs, announced their intention to challenge the “repeal” law, also known as HB 142, in July, they only just filed the fifth amended complaint targeting that law.

In their amended lawsuit, the four plaintiffs claim that HB 142 should also be found unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, and are seeking an injunction to stop North Carolina from enforcing its provisions. They are also asking for $1 each in damages plus reimbursements for legal costs.

“LGBT individuals throughout North Carolina are exposed to invidious discrimination in their day-to-day lives simply for being themselves, and are denied protection against discrimination under state law,” the amended complaint reads.

Passed earlier this year by the Republican-dominated legislature and signed into law by Gov. Roy Cooper (D), HB 142 was passed as a way for lawmakers in Raleigh to save face and begin attracting business back to the state. Under HB 2, North Carolina had lost out on several conferences, chances to host major sporting events, including the NBA All-Star Game and several college sports championships, and opportunities to attract businesses looking to relocate or expand operations.

As written, HB 142 repeals language in HB 2 that had explicitly restricted transgender people from using restrooms, locker rooms, showers, or changing facilities that match their gender identity, even if they use a curtain or other divider. However, it prohibits any state agencies or localities from passing transgender-inclusive policies or legislation that would allow transgender people such access — effectively keeping HB 2’s provisions in place. 

Under North Carolina law, transgender people must provide proof that they have undergone gender confirmation surgery before their birth certificate can be changed. Until it is changed, they are technically restricted to using only those facilities that match their assigned sex at birth, unduly burdening transgender people with the bills for medical procedures just to “prove” their gender identity. 

The plaintiffs also claim the law deprives them of substantive due process, violates their constitutional rights, as well as their right to privacy, violates their liberty and autonomy in the right to refuse unwanted medical treatment, and violates their protections under both Title IX, for purposes of education, and Title VII, with respect to employment.
Lastly, the lawsuit argues that the law is vague, as it “provides no guidance on what conduct may be subject to criminal or other penalty.”
 “The resulting uncertainty about whether transgender individuals can be criminally prosecuted for using restrooms in public buildings that match their gender identity means transgender individuals cannot safely use single-sex, multiple-use restrooms in government-controlled buildings in N.C.,” the complaint concludes.

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