Justice Department Withdraws Litigation over North Carolina’s HB2, Citing Fake Repeal

Attorney General Jeff Sessions, who vehemently opposes trans rights.

Photo by Michael B. Thomas/Getty Images

On Friday, the Department of Justice filed a motion to withdraw from litigation over HB2, North Carolina’s anti-LGBTQ law. Under President Barack Obama, the DOJ had fought HB2 in court, alleging that it violated multiple federal laws; Attorney General Loretta Lynch dramatically announced her agency’s lawsuit in a groundbreaking speech denouncing transphobia. Under President Donald Trump, however, the agency has taken a very different approach to civil rights. Attorney General Jeff Sessions openly opposes trans equality and has sought to reverse Obama-era protections for LGBTQ people. With this maneuver, Sessions handed North Carolina a considerable victory in its continuing attack on its trans residents.

According to Friday’s motion, the Justice Department decided to pull out of this litigation because North Carolina “repealed” HB2. This pretext is laughable. In reality, North Carolina simply swapped out HB2 for an equally cruel law, HB 142. HB2 nullified local LGBTQ nondiscrimination ordinances and barred trans people from government bathrooms; HB 142 does largely the same thing, using different words. As I explained in March:

The bill forbids “state agencies, boards, offices, departments, institutions,” and “branches of government,” including public universities, from regulating “access to multiple occupancy restrooms, showers, or changing facilities.” It applies this same rule to “local boards of education,” meaning these boards cannot pass trans-inclusive policies. Instead, local governments, public universities, and school boards would have to wait for permission from the General Assembly to protect trans people. Of course, the heavily gerrymandered, vehemently anti-trans, Republican-dominated legislature will almost certainly never grant this permission.

HB 142 also imposes a moratorium on local LGBTQ nondiscrimination ordinances, barring any city from “regulating private employment practices or regulating public accommodations” until December 1, 2020. The General Assembly is free to extend this moratorium at any time.

Because the new law remains so harmful, the ACLU and Lambda Legal have announced that they will amend their lawsuit to challenge its legality. They will also continue to sue for damages inflicted upon their clients by HB2. But the battle will be different now: Courts will no longer hear the Department of Justice explain why these anti-LBTQ laws violate federal civil rights protections. The DOJ’s voice isn’t necessary in litigation like this, but it does lend weight to the plaintiffs’ arguments. It will certainly be missed.

I asked Chris Brook, the legal director of the North Carolina ACLU, what he made of Friday’s development.

“This unfortunate (though unsurprising) step is just the most recent evidence that the Trump administration is bent upon undoing legal progress realized by the LGBT community in recent years,” he told me. “We will continue to fight for full, lived equality for LGBT North Carolinians.”

Chase Strangio, an attorney with the ACLU’s LGBT & HIV Project and occasional Slate contributor, echoed Brooks’ sentiment.

“It is clear that the days of a robust Civil Rights Division at the DOJ are behind us,” Strangio said. He continued:

Whether the federal government is an occasional ally or an adversary, trans people and our allies will continue to fight for our rights and the rights of other targeted communities. The idea that the effect and spirit of HB2 are gone is absurd. Trans people in North Carolina remain targeted and we must remain vigilant. As the North Carolina General Assembly finds new and ever scarier ways to attack us and other states like Texas follow suit, the lawmakers should be prepared for our aggressive and relentless responses, and they will ultimately be on the wrong side of history.