By Chase Strangio, Staff Attorney, ACLU LGBT & HIV Project
After two years of being attacked by their very own state government, trans North Carolinians are moving closer to obtaining partial victory.
Last week, Gov. Roy Cooper and Attorney General Josh Stein proposed a possible settlement to limit the harms of the state’s anti-transgender laws on trans and gender non-conforming people living in and visiting North Carolina. While the governor and attorney general have at least attempted to mitigated the damage they have done, the University of North Carolina has opted to continue to defend the law in court. Once again sitting on the sidelines and jeopardizing the well-being of their students, facility, and staff, the university seeks to maintain a right to discriminate.
For the past two years, North Carolina lawmakers have prioritized attacks on trans people. Our lives, our bodies, our ability to exist in public have been compromised amidst rhetoric and official policy that falsely and dangerously situates us as inherent threats to the privacy of others.
First, former Gov. Pat McCrory signed the infamous H.B. 2, which, among other things, codified a sweeping ban on trans people’s use of single-sex facilities in accordance with our gender. The law passed through a special session of the General Assembly in a matter of hours, was signed by McCrory that same day, and immediately went into effect. Though it prompted nationwide backlash from sports leagues, businesses, artists, and others — becoming a cautionary tale of what not to do — the impact on the trans community in North Carolina and across the country was felt immediately. We became pawns in a political game while our pain, discrimination, and trauma was exacerbated and our ability to exist in public life threatened.
Later, McCrory lost the gubernatorial election in November 2016, partly as a result of the unpopularity H.B. 2, but the state’s anti-trans legacy lived on. Though Gov. Roy Cooper campaigned on a platform to repeal H.B. 2, he never made it happen. Instead, like his predecessor, he signed a bill that passed through the assembly in a matter of hours, without any community buy-in. The law, which purported to repeal H.B. 2, did no such thing. The replacement, H.B. 142, was just another attack on trans people with different language.
The ACLU and Lambda Legal have spent nearly two years challenging H.B. 2 and then H.B. 142 in court. During that time, the Department of Justice switched sides. First it sued North Carolina for violating federal law. But after the election of President Trump, the Justice Department proclaimed its support for the anti-trans positions advanced by North Carolina lawmakers.
The plaintiffs in the lawsuit, along with Gov. Cooper and Attorney General Stein, are now asking the court to enter a consent decree — a binding agreement — limiting the ability of H.B. 142 to target and harm transgender people in North Carolina.
Like H.B. 2, H.B. 142 created fear and uncertainty for transgender and gender non-conforming people in North Carolina, who were either explicitly or effectively barred from using multi-user, single-sex facilities, like restrooms in government buildings. The proposed agreement among some of the parties would ensure that no state actor could bar transgender individuals from using restrooms or locker rooms that accord with who we are and how we live our lives. Today’s proposal is no substitute for comprehensive legal protections or the full repeal of the law, but it is a start.
Nothing is final yet, and the judge will still have to sign-off on the proposed agreement among the plaintiffs, the attorney general, and the governor. The legislature will likely join UNC in fighting the proposal and continuing to attack the LGBT community
Even if the agreement is accepted by the court, other parts of H.B. 142 will remain, like the ban on localities passing non-discrimination protections that include protections for LGBTQ people and others not explicitly protected under state law.
No matter what happens in court or in the legislature, the harms of H.B. 2 and H.B. 142 have been felt across the state. Trans and gender non-conforming people feel targeted and abandoned, and the UNC system has repeatedly stood on the side of discrimination while their students and staff suffer.
At best, this is a start, and our resolve to keep fighting remains.