Changes In HB2 Court Fight Reflect Changes in NC Politics

The legal fight over transgender bathroom access in North Carolina is down to its last lingering details.

A federal judge is directing the opposing sides to try to find a workable agreement that would resolve the core dispute.

North Carolina's so-called “bathroom bill” – also known as HB2 – forced transgender people to use public restrooms that corresponded with their biological sex at birth.

The law was partially repealed in 2017.

That didn't end the court case though. Critics said the replacement law had vague language that led to confusion. Plaintiffs submitted an affidavit from a transgender student in Wilmington who was told the replacement bill still required them to use the bathrooms that corresponded with their biological sex at birth.

Last year, the plaintiffs argued the repeal of HB2 allowed transgender people to use facilities according to their gender identity, not their birth sex.  

And federal Judge Thomas Schroeder agreed. But the plaintiffs say confusion remains. They say a signed consent decree would cut down the uncertainty and more strongly assert the court's position.

Gene Schearr, an attorney representing the legislature, opposed the decree. He says it would unnecessarily put the state law under federal oversight.

“Our clients [in the legislature] care a lot about federalism,” he said.

Schroeder said he had similar concerns.

Schroeder asked the opposing sides to try to find a workable agreement by the end of the month.

The hearing in a Winston-Salem courtroom illustrated just how far the case has come. It began in the immediate aftermath of the passage of HB2, which required transgender people to use facilities according to their sex at birth, as opposed to their gender identity.

The case continued after a partial repeal of the law was passed in 2017. In the meantime, the governor and attorney general both won office opposing HB2 and now mostly side with the plaintiffs. That left the GOP-run legislature as the most vocal defendant.

Still, HB2 continues to define state politics in many ways. On Tuesday, Republican voters chose the architect of the bill as the nominee for the Ninth Congressional District special election.

A bill sponsored by Democrats that would repeal the remnants of HB2 completely did not advance in the GOP-led legislature.