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Court: Fight Can Proceed Over 'Bathroom Bill' Replacement

Tom Bullock / WFAE
Credit Tom Bullock / WFAE

A lawsuit challenging the replacement for House Bill 2 — known as the "bathroom bill" — is moving forward, with a judge finding evidence that transgender plaintiffs are being harmed by a prohibition on new local antidiscrimination laws.

Federal Judge Thomas Schroeder, however, rejected another key argument: that uncertainty created by the current law effectively discriminates against transgender people.

The lawsuit was originally filed against the 2016 law HB2, which in many public buildings required transgender people to use restrooms matching their birth certificates. The replacement — passed the following year — rescinded that requirement, but halted new local antidiscrimination ordinances until 2020.

Schroeder sided with plaintiffs' arguments that the current law, known as House Bill 142, largely thwarts their efforts to seek new LGBT protections.

"While HB142 does not prohibit Plaintiffs' efforts at advocacy, it plainly makes them meaningless by prohibiting even the prospect of relief at the local level," the judge wrote in his ruling late Sunday. He said transgender residents had shown evidence of harm from this pre-emption of new local ordinances.

Procedurally, the ruling is a mixed result for plaintiffs by rejecting one argument and allowing another to move forward.

But one reason the judge rejected their argument about uncertainty over restroom access, the plaintiffs noted Monday, is because he interprets the current law as allowing them to use restrooms matching their gender identity. That's helpful to transgender people, plaintiffs say, because even under the replacement law, many have feared retribution if they use what others might perceive as the wrong bathroom.

The judge wrote that "nothing" in the provision of HB142 regarding bathroom access "can be construed to prevent transgender individuals from using the restrooms that align with their gender identity."

A lawyer for the plaintiffs, Chris Brook of the American Civil Liberties Union, issued a statement that the judge's decision doesn't account for harm already done under the "bathroom bill" and its replacement, but the ruling allows them to continue fighting in court. Also, he says, the judge's interpretation of the current law should help transgender people go about their daily lives.

"By making clear that transgender people in North Carolina cannot be barred from using public facilities that match their gender identity, this decision lessens some of the harm that has been caused by these laws," he said.

The ruling, which partly granted and partly rejected a motion to dismiss by state GOP leaders, allows the challenge to proceed against state officials regarding the moratorium on local nondiscrimination ordinances.

The decision also drops the University of North Carolina as a defendant from much of the case, save for some unresolved claims relating to the period when the original HB2 law was in effect.

A spokesman for Republican state Senate leader Phil Berger said the leaders were still reviewing the decision and had no immediate comment. State legislative leaders had argued the lawsuit should be dismissed because plaintiffs couldn't prove they're still being harmed by the current law.

After the original "bathroom bill" was enacted in 2016, companies halted or delayed plans to bring thousands of jobs to North Carolina in response to a boycott campaign. Major sporting events pulled out of the state.

The current law was passed as a compromise in 2017, and since then the state has again become an attractive location for out-of-state corporations. Several sports leagues have decided to bring back championship events.

The compromise law made clear that only state lawmakers — not local governments or public school officials — are in charge of restroom-access rules. The new law also barred local governments from enacting new nondiscrimination ordinances for workplaces, hotels and restaurants until December 2020.

Copyright 2021 WFAE. To see more, visit .

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