UNC System Moves Cautiously on Transgender Bathroom Rule

(Photo: Ethan Hyman, The News and Observer)

(Photo: Ethan Hyman, The News and Observer)

The University of North Carolina system has announced that it will not be enforcing a law that would require transgender students to use the bathroom that corresponds to the sex stated on their birth certificate.

“I have no intent to exercise my authority to promulgate any guidelines or regulations that require transgender students to use the restrooms consistent with their biological sex,” wrote University system President Margaret Spellings in an affidavit, who filed the motion on Friday.

Earlier in the month, guidance was issued by the Obama administration requiring public schools to allow transgender students to use the bathroom that corresponds with their gender identity.

A joint letter was included with the guidance, written by the Departments of Education and Justice, pushing to ensure that “transgender students enjoy a supportive and nondiscriminatory school environment.”

The guidance also discusses privacy rights, education records, and sex-segregated athletics.  While it does not guarantee transgender students the right to identify with the gender they would like to while in schools, it comes fairly close to doing so.

Elsewhere in the state, a debate continues over the rights of transgender students in schools and in public life.  Currently, a legal standoff is occurring between the administration and North Carolina over the controversial House Bill 2, otherwise known as the Public Facilities Privacy and Security Act, which passed in March.

While Spellings did hand out a memo in April suggesting to campuses that they should follow the law, she did not include any specific ideas pertaining to how to do so.  In a court filing, UNC lawyers hinted at the same idea, writing that the system has not “changed any of its policies or practices regarding transgender students or employees” and adding that the bill did not offer any guidance on such enforcement, writes Hilary Hanson for The Huffington Post.

“There is nothing in the Act that prevents any transgender person from using the restroom consistent with his or her gender identity,” the lawyers wrote.

In response, a number of plaintiffs, including students and university employees, are taking the UNC system to court, in addition to Governor Pat McCrory, calling HB2 discriminatory.  The law, which requires people to use the bathroom that corresponds to the sex that appears on their birth certificates, also takes away any legal anti-discriminatory protection for LGBTQ people.

The UNC board is looking for a postponement to the civil case, seeking an outcome to be first made in a separate case in Virginia involving a teenage boy who is suing a county school board over a policy that does not allow him to use the boys’ bathroom.  A three-judge panel of the Virginia appeals court had previously ruled in favor of the teen on the subject.  However, the school board then requested a new hearing in front of the entire appeals court, reports Jonathan Drew for ABC News.

Carl Tobias, a law professor at the University of Richmond, said the request made by the school board was “sensible” considering that the outcome of that case would most likely affect how the federal judges look at the lawsuits in North Carolina.

“The district judges in North Carolina are probably not going to do anything other than what the 4th Circuit says,” he said.