HB2 replacement: Challengers say HB142 still a bathroom bill

North Carolina’s controversial House Bill 2 has been off the books for three months, but organizations that filed suit against the so-called “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, a 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 The new law repealed HB2 but created a moratorium on local nondiscrimination ordinances through 2020 and left regulation of bathrooms, showers and changing facilities to state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 while he wanted full repeal, the new law represented “important progress.”

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

The ACLU, ACLU of North Carolina and Lambda Legal attorneys announced Thursday the legal team’s intentions to try 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.

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, 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.

“While Gov. Cooper has stated that, as a result of the passage of HB 142, there currently is no North Carolina state law ‘barring the use of multiple occupancy bathroom facilities in accordance with gender identity,’ other North Carolina officials, including North Carolina State Sen. Danny Britt, (House Speaker Tim Moore), and North Carolina Rep. Chuck McGrady, have stated that passage of HB 142 ensured that transgender individuals can be criminally prosecuted for using restrooms in public buildings that match their gender identity,” the amended lawsuit contends. “The resulting uncertainty about whether they could be arrested or suffer other adverse consequences means that transgender individuals cannot safely use single-sex, multiple-user restrooms in government controlled buildings in North Carolina.”

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

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 high 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, cancelation 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.