I saw about ten headlines on Friday after Judge Schroeder’s ruling that implied that HB2’s facility privacy section had been blocked statewide.
A few examples include, UNC blocked from enforcing HB2 for transgender plaintiffs (News and Observer), Federal judge says UNC can’t enforce North Carolina’s transgender bathroom restrictions (Washington Post), A Federal Judge’s Ruling Against North Carolina’s HB2 (The Atlantic).
Once you hit the article or read the actual ruling, you realized Schroeder blocked that part of HB2 for the three plaintiffs and it applies to the UNC system only. In other words this is a very specific injunction where the UNC system can’t enforce this portion of HB2 on the plaintiffs.
UNC to date has been resistant to accepting HB2 and officials from the UNC system have made statements in the past indicating they would not enforce the law. This ruling is contrary to the ruling by a Texas Federal Judge, which blocked the Obama administrations bathroom directive.
From the ruling:
Accordingly, the court will enjoin UNC from enforcing Part I against the individual transgender Plaintiffs until the court reaches a final decision on the merits in this case. Plaintiffs have not made a clear showing they are likely to succeed on their Equal Protection claim, and the court will reserve ruling on their Due Process claims pending additional briefing from the parties.
It is important to emphasize that this injunction returns the parties to the status quo ante as it existed in Title IX facilities prior to Part I’s passage in March 2016. On the current record, there is no reason to believe that a return to the status quo ante pending a trial on the merits will compromise the important State interests asserted.
In the late Friday ruling by Schroeder, A Bush appointee, he wrote that the challengers “are likely to succeed” using the argument that HB2 violates Title IX. That makes no sense unless you consider what closely what Schroeder wrote:
It is important to emphasize that this injunction returns the parties to the status quo ante as it existed in Title IX facilities prior to Part I’s passage in March 2016
Schroeder seems to be aligning with the dissenting opinion of the Gavin Grimm v Gloucester case which was written by the 4th Circuit’s Judge Neimeyer.
Neimeyer made it clear in his dissent that Title IX is not ambiguous: “Title IX and its implementing regulations are not ambiguous. In recognition of physiological privacy and safety concerns, they allow schools to provide “separate living facilities for the different sexes,” 20 U.S.C. § 1686, provided that the facilities are “proportionate” and “comparable,” 34 C.F.R. § 106.32(b), and to provide “separate toilet, locker room, and shower facilities on the basis of sex,” again provided that the facilities are “comparable,” 34 C.F.R. § 106.33.”
The Supreme Court of the United States recently overturned part of the 4th Circuit’s order in Grimm v. Gloucester. The Supreme Court sided with the school district and issued an order putting a previously granted injunction by the 4th Circuit Court of Appeals on hold for the time being.
The Governor’s office issued the following statement:
“The Public Facilities Privacy and Security Act is still in effect,” said General Counsel Bob Stephens. “The judge’s limited injunction only applies to three individuals and is based on a Fourth Circuit decision recently stayed by the U.S. Supreme Court. This is not a final resolution of this case, and the governor will continue to defend North Carolina law.”
Tami Fitzgerald, Executive Director of the NC Values Coalition also issued a statement:
“Judge Schroeder has made a very narrow ruling by suspending enforcement of HB2’s bathroom provisions only for the three UNC transgender student and faculty plaintiffs. HB2 remains in effect for all others at UNC and across the state. Since UNC has refused to enforce HB2, the ruling has little effect. The Judge based his decision on the Fourth Circuit’s misguided reliance on the Obama Education Department’s interpretation of Title IX, not on the Constitution. This decision is at odds with a Texas judge’s ruling earlier in the week that enjoined nationwide the Obama Administration’s mandate forcing public schools to allow boys into girls’ bathrooms, locker rooms, and showers. It is a shame that Attorney General Roy Cooper has failed to do his job and defend the State’s common sense law that protects the privacy and safety of both boys and girls alike.”
The case will resume in October.