Lawsuit says 'bathroom bill' repeal has not solved problems

The repeal of North Carolina's 'bathroom bill' has left a 'vacuum' of ambiguous conditions: It is not clear which public restrooms transgender people can legally use; and state and local governments are powerless to determine their own policies.

First Look

Transgender people in North Carolina are still effectively prevented from using restrooms matching their gender identity under a law that replaced the state's notorious "bathroom bill" earlier this year, according to a lawsuit filed Friday.

The replacement law continues the harms of its predecessor by leaving restroom policies in the hands of state lawmakers and preventing local governments or school systems from setting rules or offering guidance, the complaint states.

"The vacuum purposefully created by HB 142 in effect maintains the ban of (the previous law) and encourages discrimination by both government and private entities and individuals," the lawsuit says. "The law offers no guidance to anyone except by implication and makes it impossible for a reasonable person who is transgender to know which restroom they can legally use."

North Carolina took the "bathroom bill" off the books in late March after a yearlong backlash that hurt the state's reputation and caused businesses and sports leagues to back out of lucrative events and projects. The compromise between Republican legislative leaders and Democrats led by Gov. Roy Cooper eliminated a provision that required transgender people to use restrooms in many public buildings corresponding to the sex on their birth certificates.

But the new law states that only the General Assembly – not local government or school officials – can make rules for public restrooms from now on. Local governments are also prohibited from enacting new nondiscrimination ordinances for workplaces, hotels and restaurants until December 2020.

The ambiguity in the law is compounded by statements from Republican lawmakers that the new law would meet the same goals as the "bathroom bill," according to the lawsuit. It cites a statement from House Speaker Tim Moore that the replacement law ensures that "persons of the opposite sex cannot go into designated multi-occupancy restrooms" and could face criminal trespassing charges.

"When you have an ambiguous statute and the most powerful people in your state telling you that you could be criminally prosecuted for using the restroom, it's no surprise that transgender North Carolinians would feel deterred from going about their day to day business," Chris Brook, an ACLU lawyer leading the lawsuit, said in a phone interview.

The lawsuit argues that the law violates constitutional due process and equal protection rights, as well as federal laws against discrimination in workplaces and schools. The filing is a revamped version of an existing lawsuit that challenged the original "bathroom bill" in federal court. Most of the same parties remain from the previous complaint, with the addition of two new plaintiffs. Cooper is also named as a defendant.

Since HB 142 went into effect earlier this year, sports leagues including the NBA, ACC, and NCAA have said they would hold championship events in North Carolina again. The announcements of large business projects such as a 1,200-job expansion by Credit Suisse are a further indication that the state is repairing its image.

But the pain continues for transgender residents across the state, according to the lawsuit. For example, plaintiff and transgender man Joaquín Carcaño, who works for the University of North Carolina, has been unable to get an answer from his employer on whether he's permitted to use restrooms that are consistent with his identity since the new law passed, the lawsuit says.

Among the new plaintiffs is Madeline Goss, a transgender woman who lives in Raleigh. Ms. Goss, whose transition included sex reassignment surgery, said the ambiguity in the new law leaves her more fearful for her safety than she was under the "bathroom bill."

"There's so much gray area that it creates this confusion," she said in a phone interview. "And it's really an invitation for people to step in, and vigilantes to come in, and discriminate against transgender people, or maybe even worse – violence."