203 F.Supp.3d 615
M.D.N.C.2016Background
- North Carolina enacted HB2 (March 23, 2016), Part I of which requires public agencies to restrict use of multiple-occupancy bathrooms, showers, and similar facilities to persons based on "biological sex," defined by the sex on the birth certificate; agencies may optionally provide single-occupancy accommodations.
- Plaintiffs (three transgender UNC students/employee and ACLU-NC on behalf of members) sued, asserting Title IX and Fourteenth Amendment Equal Protection and Due Process claims; they seek a preliminary injunction preventing enforcement of Part I against the individual transgender plaintiffs.
- Pre-HB2 practice at many NC educational institutions generally accommodated transgender individuals on a case-by-case basis; plaintiffs submitted declarations and school-district protocols showing use of facilities consistent with gender identity without known incidents.
- The Fourth Circuit's decision in G.G. interpreted Dept. of Education (DOE) guidance as controlling under Auer, requiring schools to generally treat transgender students consistent with gender identity for purposes of sex-segregated facilities.
- The district court found plaintiffs likely to succeed on their Title IX claim (applying G.G./DOE guidance), demonstrated irreparable harm (medical and educational interference), and that the balance of equities and public interest favor preliminary relief; it enjoined UNC from enforcing Part I against the individual transgender plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Part I violates Title IX by excluding transgender students from sex-segregated facilities | HB2 bars transgender individuals from facilities consistent with their gender identity and thus discriminates "on the basis of sex" in violation of Title IX; DOE guidance requires treating transgender students by gender identity | HB2 defines "biological sex" objectively by birth certificate and thus does not conflict with Title IX; G.G. is distinguishable | Court: Likely success for plaintiffs on Title IX—G.G. requires deference to DOE guidance, and Part I is inconsistent with that guidance as applied to the individual plaintiffs; preliminary injunction granted for Title IX claim against UNC |
| Whether plaintiffs demonstrated irreparable harm absent an injunction | Denial of access forces avoidance of facilities, medical harms (UTIs, kidney issues), educational/work disruption | Defendants dispute severity/speculativeness and note plaintiffs delayed filing | Court: Plaintiffs made a clear showing of imminent irreparable harm; injunction appropriate |
| Whether Part I violates Equal Protection (sex classification) | HB2 discriminates based on transgender status and sex; intermediate scrutiny applies and law lacks sufficient fit | HB2 serves important privacy and safety interests justified by physiological sex distinctions; birth certificate is a reasonable proxy | Court: Plaintiffs did not make a clear showing of likelihood of success on Equal Protection; claim denied at preliminary stage |
| Whether Part I violates Due Process (informational privacy / coerced medical treatment) | Law forces disclosure of transgender status and pressures unwanted medical procedures to change birth certificate sex | Defendants argue no fundamental right is burdened; birth-certificate sex is public record; Part I does not compel medical treatment | Court: Reserved—claims raise substantial questions but are underdeveloped; additional briefing ordered |
Key Cases Cited
- G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) (Fourth Circuit accords controlling weight to DOE interpretation that schools generally must treat transgender students consistent with their gender identity for sex-segregated facilities)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency interpretations of ambiguous regulations receive deference unless plainly erroneous or inconsistent)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standards for preliminary injunction: likelihood of success, irreparable harm, balance of equities, public interest)
- United States v. Virginia, 518 U.S. 515 (1996) (intermediate scrutiny for sex classifications; burden on government to show important objective and substantially related means)
- Romer v. Evans, 517 U.S. 620 (1996) (Equal Protection overview; levels of scrutiny and rational-basis framework)
- Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) (permissible gender-based statutory classification where tied to biological differences)
- Daniels v. Williams, 474 U.S. 327 (1986) (distinction between procedural and substantive due process principles)