FAQ: Why We're Still Suing Over HB 142, North Carolina's Fake HB 2 "Repeal"

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May 31, 2017

What is the status of the Lambda Legal and ACLU lawsuit against HB 2 since it was repealed by HB 142?

The lawsuit brought by Lambda Legal and the ACLU to challenge North Carolina’s HB 2 remains pending in federal trial court.

Although HB 2 has been repealed, Lambda Legal and the ACLU are amending their complaint to challenge HB 142, which doubles down on many of the worst harms of HB 2.

Lambda Legal and the ACLU also previously had an appeal pending in the Fourth Circuit, which focused the specific part of HB 2 requiring transgender people use restrooms matching their birth certificates. Because that particular part of HB 2 no longer exists, we dismissed our appeal.

We will continue, however, to challenge HB 142 vigorously in the trial court.

What's wrong with HB 142?

HB 142 bars any protections for transgender people using restrooms or other facilities in schools or other state or local government buildings.

In other words, state courthouses, city halls and other government agencies cannot have a policy that allows transgender people to use the right restroom. This leaves transgender people in a legal limbo, with no clear rule about which facilities they may use. That uncertainty, coupled with the discriminatory targeting of transgender people by the legislature for more than a year, creates a toxic environment of fear.

Our lawsuit seeks clarification that federal law guarantees transgender people the right to be safe by using the restrooms and facilities that match their gender identity.

HB 142 also prevents cities from passing any protections for employment discrimination or discrimination by places of public accommodation — for LGBT people or anyone — until December 2020. This is an obvious effort to clamp down on further non-discrimination protections for LGBT people, at the time when such protections are needed most.

Lambda Legal and the ACLU’s lawsuit asks the court to confirm that the federal guarantees of Equal Protection do not allow a legislature to single out LGBT people for this kind of targeted discrimination.

I heard that Gov Cooper dropped the case against HB 2. What does that mean?

Lambda Legal and the ACLU are profoundly disappointed that Governor Cooper signed HB 142 into law. He remains a defendant in the lawsuit to answer for this discriminatory law, in the same way that our lawsuit asked Governor McCrory to answer for the discrimination in HB 2.

I read that the Department of Justice in the Trump Administration also dropped the HB 2 case. What does that mean?

After HB 2 was repealed, the Department of Justice — led by Attorney General Jeff Sessions — dismissed its challenge to North Carolina’s discriminatory law. This is simply another example of the Trump administration and Jeff Sessions withdrawing the federal government’s support from transgender individuals.

Among other anti-transgender steps, the Trump administration rescinded guidance from the Obama administration on the treatment of transgender students, signaled that it may roll back non-discrimination protections under the Affordable Care Act and rescinded President Obama’s Fair Pay and Safe Workplaces Executive Order.

The DOJ’s dismissal will not affect the lawsuit by Lambda Legal and the ACLU against HB 142, however. The law is just as unconstitutional now as it was the day the legislature enacted it, and the fact that DOJ has abandoned the fight for LGBT equality in North Carolina does not change that.

I heard that Governor Cooper plans to issue an executive order to expand LGBT protections in North Carolina. What will be included?

We won’t know until the EO is issued, so it’s critical that you contact the Governor and urge him to include meaningful protections for LGBT people.