Yesterday a federal court in North Carolina issued an injunction that will prevent the state’s “bathroom bill” from taking effect at the University of North Carolina.
By way of background, earlier this year, North Carolina legislature passed HB 2, which preempts local ordinances banning discrimination on the basis of sexual orientation and gender identity, and also restricts occupancy of multi-user bathrooms that are located in state agencies and public schools according to the user’s “biological sex” as indicated by their birth certificate. Transgender plaintiffs challenged HB 2 as a violation of their constitutional rights, as well as a conflict with Title IX. As part of the lawsuit, which names the University of North Carolina as one of the defendants, they successfully sought to immediately enjoin the bathroom restriction at UNC so that they can continue to use the bathroom that matches their gender identity while the lawsuit proceeds.
The standard for a preliminary injunction requires a plaintiff to demonstrate likely success on the merits as well as irreparable harm if the injunction is denied. Applying this standard, the court determined that the plaintiffs will likely succeed in their argument that UNC’s enforcement of HB 2 violates Title IX. The court applied G.G. v. Gloucester School District, the Fourth Circuit decision that confirmed a transgender boy’s right under Title IX to use the boy’s bathroom. The federal courts in North Carolina are also in the Fourth Circuit, so the Gloucester case is binding precedent — even though the remedy is temporarily on hold, for now, pending Supreme Court review.
In contrast, the court determined that plaintiffs’ constitutional claims raised a novel application of the Equal Protection Clause, thus precluding the “clear showing” of likely success on the merits that is necessarily for a preliminary injunction. But the plaintiff’s likely success under Title IX, combined with its conclusion that transgender students at UNC will suffer irreparable harm — no place to use the bathroom — satisfied the requirements for injunctive relief.
As a result, North Carolina state law does not prohibit UNC from accommodating the transgender plaintiffs’ gender-consonant bathroom use. If UNC refused such accommodations, however, the federal government is presently enjoined from enforcing such an interpretation of Title IX as a result of last weekend’s decision from the federal court in Texas. I read these conflicting injunctions to effectively permit UNC to choose for itself — for now — whether to accommodate transgender students, without a threat of either state or federal penalties for either choice it might make.