by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
As most readers surely know, the North Carolina statute known as HB2 requires public agencies to assign users to multiple occupancy bathrooms, locker rooms, shower rooms, and similar facilities on the basis of biological sex. Several groups of plaintiffs have filed lawsuits challenging the law, and in May some of those plaintiffs filed a motion requesting a preliminary injunction that would temporarily block its enforcement.
Last week the US District Court for the Middle District of North Carolina granted their request. In a typically meticulous and carefully reasoned opinion, Judge Schroeder ordered that:
The individual transgender Plaintiffs’ motion for preliminary injunction on their Title IX claim is GRANTED. The University of North Carolina, its officers, agents, servants, employees, and attorneys, and all other persons acting in concert or participation with them are hereby ENJOINED from enforcing Part I of HB2 against the individual transgender Plaintiffs until further order of the court.
This may appear to be a victory for the opponents of HB2, but it really isn’t.
The plaintiffs are challenging HB2 on two grounds: as a violation of Title IX of Civil Rights Act (which prohibits discrimination on the basis of sex) and as a violation of the Equal Protection Clause of the 14th Amendment. In making their case for a preliminary injunction, the plaintiffs argued that they were likely to succeed on both grounds.
Judge Schroeder had little choice as far as the first of these is concerned. In a case decided earlier this year, the US Court of Appeals for the 4th Circuit deferred to the Department of Education’s interpretation of Title IX. According to that interpretation the word “sex” actually means “gender identity.” Recognizing that he was bound by this precedent, Judge Schroeder found that:
Applicable Fourth Circuit law requires that DOE’s guidance defining “sex” to mean gender identity be accorded controlling weight when interpreting DOE’s Title IX regulations. Because Part I of HB2 prevents transgender individuals from using multiple-occupancy bathrooms and similar facilities based solely on the gender listed on their birth certificate, it necessarily violates DOE’s guidance and cannot be enforced.
However, on the basis of an exhaustive analysis of the relevant case law he rejected the plaintiff’s equal protection claim:
In sum, Supreme Court and Fourth Circuit precedent support the conclusion that physiological differences between men and women give rise to the privacy interests that justify segregating bathrooms, showers, and other similar facilities on the basis of sex. In addition, Plaintiffs admit that the vast majority of birth certificates accurately reflect an individual’s external genitalia. Although the correlation between genitalia and the sex listed on a person’s birth certificate is not perfect in every case, there is certainly a reasonable fit between these characteristics, which is what the law requires…. At this preliminary stage, and in light of existing case law, Plaintiffs have not made a clear showing that they are likely to succeed on their Equal Protection claim.
Judge Schroeder is surely right about what equal protection requires. The same cannot be said about the 4th Circuit’s decision to defer to DOD rule-makers regarding the meaning of “sex” under Title IX. It would be nice to think that the better argument will prevail when, as seems likely, this case (or one of the many related cases) reaches the Supreme Court. In reality, however, it probably depends entirely on who gets appointed between now and then. (File this under “missing justice Scalia.)