What Does New Guidance on Transgender Students Mean For NC Schools, HB2?

Feb 23, 2017

For nearly a year North Carolina has been front and center in the debate about which bathrooms transgender people can use, thanks in large part to House Bill 2.

Now, with the Trump administration's new guidance on transgender student bathroom use, there are a lot of questions about what this means for our state.

How will it play out for local school districts?

School districts in North Carolina found themselves in a bind last spring. They were caught between state law and federal guidelines. House Bill 2 made it illegal for transgender students to use bathrooms that do not correspond to the gender on their birth certificates. But new federal guidelines said schools must give these students a choice of facilities.

Last summer, CMS told schools transgender students should use the bathroom they're most comfortable with. Allison Shafer with the North Carolina School Boards Association says it's the only district in the state she knows of to have a regulation regarding transgender students. But CMS then put that on hold while the matter plays out in court. 

CMS like other North Carolina school districts has been working with transgender students and their families to find other solutions when it comes to bathrooms – like allowing these students to use a private restroom.   

The reversal of the federal guidelines on transgender students cements that practice in place. Shafer says it has another impact. It means school districts don't have to worry the federal government will go after them and federal education money for following state law. 

What does this mean for lawsuits challenging House Bill 2?

The Obama administration had interpreted the listing of sex as a protected class to include gender identity, sexual orientation, and gender expression.

The Trump administration now defines sex as simply whether you're a boy or a girl at birth.

And just who gets to use which bathroom? This new guidance states that should be decided on a local level.

Maxine Eichner, a professor at UNC School of Law, is an expert on family law and LGBT issues. She sees a problem with this states' rights argument. "The flip side to that argument is that we have a federal law that protects against discrimination based on sex," she says. 

That would be the 1964 Civil Rights Act and its chapters known as titles, like, Title IX, which bans discrimination in education, and Title VII, which bans discrimination in employment. These are key elements to a lawsuit filed in part by the ACLU just after HB 2 became law.

"The lawsuit challenges the provisions that preempt local protections for the entire LGBT community," explains Chris Brook, Legal Director for the North Carolina Chapter of the ACLU. "It also challenges the bathroom provisions that discriminate against the LGBT community in North Carolina."

Brook notes the lawsuit also points to constitutional issues like due process and privacy.

"What the bathroom provisions of HB 2 do is force transgender individuals to out themselves every time they use the restroom by forcing them into a restroom that does not comport with their gender identity and gender expression," says Brook.

That lawsuit is currently making its way through the federal system. But Brook acknowledges this lawsuit and others has lost a powerful ally now that the US Departments of Justice and Education are no longer on their side.

"Obviously, it was exceptionally important to have Attorney General Loretta Lynch stand up and talk about how measures like HB 2 harm members of the LGBT community and are inconsistent with our principals and our civil rights laws," he says. "But our lawsuit and the constitutional claims that we brought up are not dependent in any way on the Department of Education or the Trump administration."

Others aren’t so sure. Take the Title VII claims of discrimination.

"You know I think it makes the ACLU's case harder," says Brian Clarke, professor of employment law at Western Carolina University. "Not impossible but harder because they're going to have to argue essentially from scratch that transgender is included within the definition of sex."

Maxine Eichner of the UNC School of Law says the same is true when it comes to Title IX. "The claim the ACLU was most likely to win on was based on Title IX. Without that, it doesn’t look nearly as certain as it did before."

So what does all this mean for the future of HB 2?

One school of thought is that it will take the steam out of repeal efforts. Eichner thinks the opposite.

"The fact of the matter is there's an argument to be made that if courts struck down HB 2 that would end the issue for the legislature," says Eichner.

She points out the primary pressure to repeal HB 2 has come from businesses - and that pressure continues.