RALEIGH — Supporters of North Carolina’s bathroom rules have urged a federal judge to closely consider a ruling in Texas that has temporarily blocked the Obama administration’s ability to withhold federal money from schools that don’t let transgender students use bathrooms matching their gender identity.
But opponents and independent legal experts said Tuesday that the ruling in Texas won’t affect the North Carolina litigation.
“Although it sounds like this is all part of the same pot, the fact is there are multiple pots in the kitchen and different things cooking in the different pots,” said Boston College law professor Kari Hong, who studies family law and LGBT rights. “The law is very good at compartmentalizing.”
Attorneys for Gov. Pat McCrory, state legislative leaders and other defendants told U.S. District Judge Thomas Schroeder in Winston-Salem that the ruling in Texas “is pertinent and significant” to their defense of North Carolina law, which requires transgender people to use public restrooms matching the sex on their birth certificates.
Late Sunday, U.S. District Judge Reed O’Connor in Wichita Falls, Texas, blocked the Obama administration from requiring public schools to let transgender students use the bathrooms consistent with their gender identity. Texas is one of 13 states challenging the White House directive; North Carolina is not among them.
O’Connor wrote that his order would apply nationwide — an assertion immediately questioned by supporters of Obama’s directive, who noted that higher courts elsewhere have upheld gender rights. O’Connor himself provided some wiggle room, writing that his order “should not unnecessarily interfere with litigation currently pending before other federal courts on this subject.”
The Texas order does effectively stop the Obama administration from withholding federal education money from states that don’t accept its interpretation that anti-discrimination protections based on sex in federal civil rights law extends to transgender students, said Duke University law professor Jane Wettach, who teaches education law.
The state law’s opponents, however, said the Texas decision doesn’t trump a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, whose decision supporting a transgender student’s bathroom choice in Virginia sets a precedent for the Carolinas as well. That case is now before the U.S. Supreme Court, which said a Virginia school board can block the student from using the boys’ room until it rules.
“The Texas preliminary injunction has no effect whatsoever on this case, as it is directed only against the federal government defendants in the Texas case, and enjoins them from enforcing the relevant guidelines only against the 13 state plaintiffs in that case, which do not include North Carolina,” attorneys for the American Civil Liberties Union and Lambda Legal wrote.
Also, the Justice Department asked Schroeder to declare that North Carolina’s House Bill 2 violates separate employment and education provisions of civil rights law, Wettach said, making the court fights distinct.