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What Federal Appeals Court Ruling For Transgender Student Means For NC's HB2

Washington University School of Law
The 4th U.S. Circuit Court of Appeals, which includes Virginia and North Carolina.

A federal appeals court ruling Tuesday in a Virginia case is casting doubt on the legality of one part of North Carolina’s controversial new law: requiring students to use the bathroom corresponding to the gender on their birth certificate.

Federal appeals courts are like the Supreme Court for a region, at least until the actual Supreme Court steps in. North Carolina and Virginia fall under the same one.

In a 2-1 decision, judges from that court indicated that transgender students should be allowed to use the bathroom corresponding to their gender identity, rather than what their birth certificate says.

That’s in conflict with North Carolina’s HB2, says Chris Brook, legal director of the North Carolina ACLU.

"The end result is pretty plain: students in North Carolina should be allowed to use the restroom that comports with their gender identity, and House Bill 2 by dictating otherwise violates Title IX," Brook says.

Title IX is a law prohibiting sex discrimination in schools that receive federal funding. That’s what the argument in Virginia was all about: did a local school board violate Title IX by requiring students to use the bathroom corresponding to their birth certificate. 

The federal Education Department said it did, and the appeals court ruled, "We conclude that the Department’s interpretation of its own regulation…is to be accorded controlling weight in this case."

North Carolina Governor Pat McCrory addressed the ruling.

"As governor, I will uphold my oath of office and respect these court rulings and make sure these court rulings are abided to," he said in a broadcast on WRAL, "because I’ve sworn an oath to do just that and I have a tradition of doing just that."

McCrory says his legal team still needs to evaluate the ruling’s exact impact.

It likely means the part of HB2 concerning school bathrooms is discriminatory. But it does not impact the other parts of the law, such as bathroom requirements for other government buildings and the exclusion of LGBT people from employment protections. There is a lawsuit playing out against those provisions as well.