Judge blocks HB2 for three plaintiffs

A federal judge issued a narrow ruling today saying the University of North Carolina must allow two transgender students and an employee to use the restrooms that correspond with their gender identities, not their biological sexes.

The ruling is a shot across the bow to supporters of North Carolina’s HB2, a law that requires people in schools and government buildings to use the restrooms and locker rooms that match their biology, not their identity. Even though U.S. District Judge Thomas Schroeder’s ruling only applies to three people at UNC, he wrote in his opinion that he expects the opponents of HB2 to win their court case against the state, at least as the law relates to educational facilities.

That’s because the Obama administration in 2013 declared that the definition of “sex” in Title IX, which prohibits sex discrimination in schools, includes gender identity. The 4th U.S. Circuit Court of Appeals, which has jurisdiction over North Carolina, upheld the president’s interpretation of Title IX in a recent case out of Virginia. The Supreme Court issued a stay of that ruling while it considers the appeal.

“Despite the stay and recall of the mandate, the Supreme Court did not vacate or reverse the 4th Circuit’s decision,” Schroeder wrote. In the ruling, Schroeder accepted the plaintiff’s “unrebutted evidence that some transgender individuals form their gender identity misalignment at a young age and exhibit distinct ‘brain structure, connectivity, and function’ that does not match their birth sex.”

Before today’s ruling, UNC had already declared HB2’s requirements unenforceable and said it would not penalize transgender people for their restroom choices. But because UNC still planned to follow portions of the law such as maintaining single-sex signs outside restrooms, the judge ruled the plaintiffs had a case against the college.

Though today’s ruling indicates HB2 opponents are likely to win the bathroom battle on school grounds, Schroeder said their case for restroom access in government buildings was less certain. Where schools have the Obama administration’s explicit directions to follow regarding restroom usage, there is not clear federal guidance for bathrooms in public buildings. Schroeder said he would revisit that issue when the case goes to trial.