Appeals ruling threatens key provision of NC transgender law

CHARLOTTE, N.C. — A federal appeals court ruling on transgender bathroom access in public schools threatens a key provision of a North Carolina law limiting protections for the LGBT community.

The court decision has prompted swift condemnation from the state's Republican leadership.

The 4th Circuit Court of Appeals in Richmond sided Tuesday with a transgender teen's arguments that a Virginia school board violated Title IX by forbidding him from using the boys' restroom. The interpretation of the federal education law directly affects North Carolina.

The court's ruling imperils a provision in the North Carolina law — called HB2 — that requires transgender students in public schools and universities to use bathrooms corresponding to the gender on their birth certificate, said Maxine Eichner, a University of North Carolina law professor.

"We have the writing on the wall here how that will come out," said Eichner, an expert on sexual orientation and the law.

Schools across the country can choose to follow federal regulations or their own state laws, and depending on how they choose, state or federal funds for education could be on the line.

Either way, students are caught in the middle.

If a local college chose to honor state law, then billions of dollars in federal student aid, Stafford loans and Pell grants could be at risk.

“You could be putting students out of school if federal grants are just taken away,” said UNCC freshman Johnathan Withrow.

Channel 9 is still waiting to hear from the UNC system and other local public school districts on which law they will follow.

Channel 9 is breaking down who benefits from the more than $4.5 billion in federal funding the state gets to put toward education.

The majority of the money goes directly to student loans for thousands of college students. The money also funds grants for teachers, programs and low income and homeless students.

Channel 9 reporter Brittney Johnson is visiting CPCC Wednesday, where more than half of the student body relies on Pell grants to help fund their education. Hear their concerns about any potential impact HB2 could have on their ability to work toward a bright future for their families, on Eyewitness News at 5 p.m.

How quickly the ruling's effects are felt in North Carolina depends on several factors. Among them are possible appeals, a separate lawsuit still pending and interpretation by state lawyers. Additionally, provisions of North Carolina law that fall outside Title IX — such as those regarding discrimination in workplaces, hotels and restaurants — wouldn't be directly affected by Tuesday's ruling, experts said.

Last month in North Carolina, a transgender student and employee in the state's university system filed a lawsuit arguing that the new law violated Title IX. Eichner said they could use Tuesday's ruling to win an injunction blocking the law's provisions on bathroom access in public schools.

"What the plaintiffs would be doing is saying: 'There are transgender kids out there that are experiencing harm as a result of HB2 and who are likely eventually to ... have their legal claims resolved in their favor.' And given that, a court should step in immediately and bar the application of HB2," she said, referring to the law by its legislative name.

Just after the ruling was announced, North Carolina Gov. Pat McCrory said he strongly disagrees with what he calls President Barack Obama's "objective to force our high schools to allow a boy in a woman's or girl's locker room facility."

The Republican governor said the ruling "puts a whole dynamic" on North Carolina's bathroom policy. He said he's seeking an evaluation from state lawyers about whether public schools can continue to implement the state law while the Virginia defendants decide whether to appeal.

North Carolina state Senate leader Phil Berger, also a Republican, took a more combative approach. He decried what he called the "radical social reengineering of our society by forcing middle school-aged girls to share school locker rooms with boys."

Chris Brook, an attorney with the American Civil Liberties Union who's leading the litigation challenging the North Carolina law, declined to discuss specifics about what his legal team's next move would be. Yet he said the appeals court's decision confirms one of their key arguments.

"Today's ruling makes plain what we've been saying since the day that HB2 was introduced in the legislature: that it violates Title IX," he said in a phone interview. "If you are a recipient of federal education funds you cannot discriminate."

He said that while the North Carolina law's provisions on workplace discrimination and public accommodation fall outside of Title IX, Tuesday's ruling gives momentum to all of the law's opponents: "From both a legal and policy standpoint the wind is very plainly at our back here."

The ACLU said the ruling means North Carolina's HB2 law is unconstitutional, and it plans to seek an injunction in federal court to block it.

Brook told Channel 9 that the arguments in the Virginia case mirror the debate over HB2, and the decision in Virginia took it a step further. He said they used data to show bathroom assaults have not increased in areas where laws allow transgender individuals to use restrooms of their choice.

"There is no benefit realized by discrimination in general or by discriminating against the transgender community in this particular context as well," Brook told Channel 9.

Channel 9 also spoke with the N.C. Values Coalition's executive director, who said she expects the case to go all the way to the Supreme Court. The coalition argues that the federal appeals court misinterpreted guidelines on bathrooms in public schools and discrimination.

The group said the definition of sex is not about feelings, but about biology.

The North Carolina Speaker of the House told Channel 9 Wednesday morning that the legislators have already talked about plans to fight any challenge in court to House Bill 2.

Tim Moore spoke to Channel 9 about how the federal court ruling in Virginia opens the doors for a suit to repeal part of HB2.

"These far left radical organizations that are out here promoting this are acting against the will of the people and are acting against common sense," Moore said.

The Speaker explained how the state will defend the law, considering the attorney general opposes it, and also said why he thinks opponents to HB2 are no stronger now than they were before the federal court ruling, on Eyewitness News at 5 p.m.

In the Virginia case, a three-judge panel of the appeals court ruled 2-1 in favor of Gavin Grimm's argument that the Gloucester County School Board's policy violated Title IX. The fourth circuit's ruling applies directly to states in its territory, which also include Maryland, West Virginia and South Carolina.

A federal judge had previously rejected Grimm's sex discrimination claim, but the court said that judge ignored a U.S. Department of Education regulation that transgender students in public schools must be allowed to use the restroom that corresponds with their gender identity.

Appeals court Judge Paul V. Niemeyer wrote in a dissenting opinion that the majority's opinion "completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes."

The school board could appeal the decision to the full appeals court or the U.S. Supreme Court. David Patrick Corrigan, an attorney for the school board, didn't immediately return a phone message requesting comment.

On another issue, the appeals court ordered the trial judge to reconsider his refusal to issue an order that would allow Grimm to use the boys' restrooms immediately.

Grimm was born female but identifies as male. He was allowed to use the boys' restrooms at the school for several weeks in 2014. But after some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.

Grimm, 16, said he started refusing to wear girls' clothes by age 6 and told his parents he was transgender in April 2014.

Because the school board could appeal further, it's unclear whether Grimm will be able to use the boys' room anytime soon — but he said he's not worried about that.

"Hopefully this is the beginning of the end of the situation," Grimm said by telephone. "I'm just going to take things one day at a time."

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