A federal judge in North Carolina has approved a legal settlement that will enable transgender individuals to use the restroom that matches their gender identity inside government buildings.
U.S. Judge Thomas Schroeder of the U.S. District Court for the Middle District of North Carolina signed a consent decree order jointly submitted by Gov. Roy Cooper (D) and LGBTQ civil rights groups, which sued the state over HB 142, the law that purportedly “repealed” and replaced the state’s infamous and much-reviled HB 2 law, also known as the “bathroom bill.”
Under HB 2, transgender people were explicitly barred from using restrooms in government buildings that do not conform with a person’s assigned sex at birth. Additionally, the law — which prompted boycotts, led to a loss of tourism dollars, and even saw major sporting events moved elsewhere in protest — barred counties and municipalities from passing laws or ordinances that protect LGBTQ people from discrimination.
In response to the backlash, the state’s General Assembly eventually decided on a face-saving public relations move. The replacement bill, HB 142, claimed to “repeal” the law, but in fact kept the prohibition on localities passing LGBTQ-inclusive nondiscrimination ordinances in place until Dec. 1, 2020. After that date, local governments could potentially pass inclusive ordinances, so long as their definition of public accommodations did not include restrooms or multi-user facilities like locker rooms, showers, saunas, or other changing facilities.
The bill also explicitly prevented localities or state-owned facilities from imposing regulations on multi-user restrooms or changing facilities unless said regulations were approved by the General Assembly beforehand. This was a way to ensure that all people were required to use sex-segregated facilities, based on their biological sex at birth, inside government buildings.
HB 2 did not explicitly prevent public restrooms in privately-owned facilities from adopting pro-transgender policies, instead leaving it up to the discretion of individual businesses or owners.
LGBTQ advocates with the American Civil Liberties Union and Lambda Legal subsequently sue the state, challenging multiple parts of the law as unconstitutional, setting off a three-year legal battle.
As part of the consent decree approved on Tuesday, the state of North Carolina — which includes Cooper’s successors and future state employees — agrees that it cannot use HB 142 to bar transgender individuals from using public restrooms inside government-owned buildings that match their gender identity, or prosecute them for doing so. In exchange, the plaintiffs agree to drop their lawsuit against the state — though other cases challenging other provisions in HB 142 have not been resolved.
But the consent decree does not preclude the General Assembly from attempting to amend HB 142 or “challenging or acting in accordance with future legislation.” Additionally, it does not dismiss previous lawsuits brought against HB 2 challenging that law’s constitutionality during the time it was in place.
Still, the plaintiffs and their lawyers celebrated Tuesday’s victory.
“After so many years of managing the anxiety of HB 2 and fighting so hard, I am relieved that we finally have a Court order to protect transgender people from being punished under these laws,” Joaquin Carcaño, the lead plaintiff in the case, said in a statement.
“This is a tremendous victory but not a complete one,” Carcaño added. “While I am glad that Governor Cooper agreed to this settlement, it remains devastating to know that local protections for LGBTQ people are still banned under state law while so many members of our community continue to face violence, harassment, and discrimination simply because of who we are. The fight for full justice will continue.”
“Using facilities that match one’s gender identity is a basic necessity for full participation in society, and this order’s confirmation that transgender people can do so is an important victory,” Tara Borelli, counsel for Lambda Legal, said in a statement. “Being able to safely navigate everyday life when you set foot outside your home is not a luxury. It is a basic foundation for being treated and accepted as co-equal members of society, like everyone else.”
The ACLU of North Carolina said it was thrilled to “obtain some clarity and relief for transgender North Carolinians,” but reiterated its previous calls for statewide comprehensive nondiscrimination protections for LGBTQ individuals.
The Campaign for Southern Equality echoed those statements, as well as a call to repeal HB 142 entirely, noting that the law does not address other problematic elements of HB 142, such as the restrictions placed on municipalities that remain in place until Dec. 1, 2020.
“This settlement is a significant step forward for North Carolina in our years-long fight for equality for all LGBTQ people across the state…Today, we celebrate a step forward, and we’re grateful for every North Carolinian, including so many grassroots leaders, for resisting this oppressive law,” the Rev. Jasmine Beach-Ferrara, the group’s executive director, said in a statement.
But Allison Scott, director of policy and programs at the Campaign for Southern Equality, told Metro Weekly in an interview that the settlement agreed to by the state does not necessarily translate into lived equality.
“As a transgender woman myself, I know that discrimination does not start or end in bathrooms, or in the settlement of HB 142,” Scott said. “It was going on before this. It is certainly going on now. I’ve seen it in my life, and we’ve certainly seen it in the lives of other LGBTQ people across the South, and in North Carolina.”
Scott noted that the settlement also does nothing to stop widespread discrimination in employment, housing, and the use of public accommodations, including restrooms, in privately-owned facilities.
“We have people calling in and talking to us about the discrimination they face. It hasn’t stopped, and pulling this piece of HB 142 back isn’t going to make it stop overnight, until we see nondiscrimination ordinances and policies put in place on a statewide level,” Scott added. “Basically, there are two paths to ending discrimination: one path having some more roadblocks until the end of HB 142, the sunset period, and the other being a statewide nondiscrimination ordinance passed by the General Assembly.”
Scott also said that LGBTQ activists aren’t sure how the General Assembly will react should any locality pass a nondiscrimination ordinance after the prohibition contained in HB 142 expires. Republicans in the General Assembly could also seek to amend or extend that provision in perpetuity, thus rehashing the same battles that led to adoption of HB 2 after Charlotte passed a trans-inclusive nondiscrimination ordinance. (At the time, conservative legal experts argued that the ordinance would have prohibited any public accommodation inside the city limits from having sex-segregated restrooms.)
“That’s part of the problem. After Charlotte did it, people saw a swift backlash from our General Assembly,” she said. “I think all the cities are keeping that in mind. I’m not saying they won’t [take action], but they are thinking about, “if we do this, what will happen?” And quite frankly, I think that’s the intentional effect of these laws: it’s always the looming threat of state action if LGBTQ people assert their rights.”
Editor’s note: This story was updated to further clarify that HB 2 and HB 142 only restricted access to “public” (i.e. multi-user) restrooms in government-owned facilities. Privately-owned facilities have always been allowed to craft their own policies as they see fit.