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Hearing Set In HB2 Case As Supreme Court Returns VA Case To Appeals Court

Image of bathroom sign
The LEAF Project
Flickr Creative Commons

The North Carolina plaintiffs fighting House Bill 2 in federal court face more legal uncertainty after Monday's U.S. Supreme Court decision.

The case has been on hold pending the U.S. Supreme Court's hearing of a Virginia case involving a transgender student who sued to use his high school's male bathroom.

But Monday, the Supreme Court decided not to hear that case. Instead, the Fourth Circuit will determine whether Title IX protections against sex discrimination cover transgender students, too.

Greg Wallace is a professor at Campbell University's Law School. He says the federal judge in the HB2 case can now tackle that issue without having to wait for either the Supreme Court or the Fourth Circuit.

"Judge Schroeder in the Carcano case could go ahead and make his own ruling with respect to whether Title IX does include gender identity in its discrimination prohibitions,” Wallace said.

UNC - Chapel Hill School of Law Professor Maxine Eichner said the federal judge in the HB2 case must now decide if Title IX applies in transgender cases by looking at the statute's language.

"Which simply prohibits sex discrimination and that is a much vaguer dictate to apply in this case,” she said.

A hearing in that case has been scheduled for May 10. In a statement, the ACLU and and Lambda Legal, which represent four LGBT North Carolinians, said they look forward to being back in court.

“House Bill 2 represents an egregious attack on transgender people and their ability to participate in public life," the statement said. "While we continue to urge North Carolina legislators to repeal the law entirely, without still sanctioning discrimination, particularly against transgender people, we cannot wait for lawmakers to do the right thing. We will continue to fight for the rights of LGBT North Carolinians in court and beyond."

The move by the Supreme Court comes as the Trump administration takes steps to drop the federal government’s legal fight against North Carolina’s “bathroom bill.”

The Justice Department wrote in a motion last week that it needs time to rethink its 2016 request to halt North Carolina’s requirement that transgender people use restrooms in many public buildings corresponding to the sex on their birth certificates. The federal judge responded on Friday with a stay the freezes efforts started by lawyers working under President Barack Obama to block the law with a preliminary injunction.

The plaintiffs in the North Carolina case also make constitutional claims of discrimination.

The Associated Press contributed to this report.

Rusty Jacobs is WUNC's Voting and Election Integrity Reporter.
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