UNC refusing to enforce state law on transgender bathrooms
The University of North Carolina is caught in limbo between state law that requires transgender students to use the bathroom that matches their gender of birth and federal anti-discrimination statutes.
According to The Associated Press, UNC system President Margaret Spellings vowed in an affidavit that the university would not enforce North Carolina’s controversial bathroom law that restricts transgender students from using gendered bathrooms that do not correspond to their gender at birth, which she filed Friday as part of a motion in federal court to pause a civil case against the university.
Both the university system and North Carolina Governor Pat McCrory (R) are named as defendants in the federal case brought by students and university employees who claim the new law is discriminatory, and UNC’s lawyers want the proceedings postponed while another court reviews whether federal law preempts statutes like the one adopted by North Carolina, as the Obama administration has asserted.
North Carolina House Bill 2, or the Public Facilities Privacy and Security Act, went into effect on March 23 and “[created] statewide consistency in regulation of employment and public accommodations.”
The Act requires that transgender students use the bathroom facility that corresponds to the gender listed on their birth certificate when using single-sex, multiple-occupancy bathrooms, or else use “gender-neutral,” single-occupancy public bathrooms if they prefer. The LGBT Center at UNC-Chapel Hill specifies that there are 158 such gender-neutral bathrooms available on their campus.
Despite the large number of gender-neutral bathrooms already available at UNC, Spellings wrote in her affidavit that she “[has] no intent to exercise [her] authority to promulgate any guidelines or regulations that require transgender students to use the restrooms consistent with their biological sex.”
She also pledged that she would not enforce the Act until there is a final judgment in the lawsuit against UNC, Inside Higher Ed reports.
"Pending a final judgment in this case, I have no intent to exercise my authority to promulgate any guidelines or regulations that require that transgender students use the restrooms consistent with their biological sex," Spellings told the court.
Previously, in a May 9 letter to the Department of Justice, Spellings acknowledged that the University of North Carolina was in violation of the Public Facilities Privacy and Security Act and stated that she has been put “in a difficult position” due to the legal conflict between federal civil rights laws and the new state law.
Spelling affirmed that the university will continue to comply with federal law and has “[pledged] its good faith commitment to assure the proper application of non-discrimination law in the university setting.” However, she made clear that “there remain many difficult and unanswered questions” about the state Act’s enforcement and its relation to federal anti-discriminatory law.
Yet in previous statements, Spellings indicated that UNC would adhere to the Act. On April 5, she recommended in a memorandum to UNC chancellors that the university comply with the law, saying “University institutions must require every multiple-occupancy bathroom and changing facility to be designated for and used only by persons based on their biological sex.”
Spellings went on to say that UNC “should take [certain] actions to fully meet their obligations under the Act” before listing a series of measures that label and designate multiple-occupancy bathroom facilities. The memorandum also recommended providing notice of the Act to all university campus constituencies.
The AP notes that five legal cases have been filed against the Act, all of which are currently pending in federal courts. The plaintiffs, who include students and university staff, are calling the Act a discriminatory move against transgendered students.
The American Civil Liberties Union (ACLU) has also sued the state of North Carolina over the issue, declaring that they will “[fight] in court for the trans folks who have been targeted relentlessly in North Carolina and for the entire LGBT community who is harmed by this regressive and discriminatory law.”
In its lawsuit announcement, the ACLU claims that the Act is “hateful” and “dangerous” towards transgender students and that it promotes violence and discrimination.
The university’s decision to wait on enforcement rests on a related but separate lawsuit occurring in Virginia.
The Virginia court of appeals had initially ruled in favor of a transgender teenager who had tried using a bathroom corresponding to his chosen gender identity, but the school board requested a new hearing. On Tuesday, the court denied the school board’s request to rehear the case, according to The Washington Post.
Even so, the issue still may not be completely resolved. The Virginia school board still has a chance to have its case seen by the U.S. Supreme Court, though legal experts say that is unlikely, because the Court rarely gets involved with cases that don’t have conflicting rulings at the appellate level.
In the meantime, eleven other states have also filed cases against the federal government over President Obama’s directive that forces public schools to allow transgender students access to all bathrooms.
It may still be several months until the case against North Carolina and UNC is resolved, and until it is, Spellings vows to continue to follow federal anti-discrimination statutes rather than North Carolina’s Privacy and Security Act.
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