HB2, Public Bathrooms and the Transgender Community

By Peter Billings

Major headline news over the past several months has put a spotlight on the almost nonexistent protections for the approximately 700,000 transgender people currently living in the United States. Recent milestone developments in the federal government’s policy on gender issues, however, has given hope to the transgender community and their advocates that a change in laws is coming which will encompass increased protections for transgender people.

Last month, North Carolina legislature passed the HB2 which is the Public Facilities Privacy and Security Act. This bill requires everyone, including transgender people, to use public facilities that correspond with the biological sex found on their birth certificate. However, the HB2 bill is much more far reaching than just about bathrooms.

Hidden within the language of the bill includes legislation that limits North Carolinians ability to sue under a state anti-discrimination law. For the past 30 years, in North Carolina, workers who were wrongly terminated on the basis of race, religion, color, national origin, age, sex or handicap, had the right to recover damages under common law due to public policy doctrine. Now, with the new HB2 bill, these workers will no longer have a fundamental remedy for a right that has been supported in court since the mid 1980’s.

The Justice Department informed North Carolina not to enforce the law due to it violating the civil rights of those living in North Carolina. The state of North Carolina, in response, sued the Department of Justice and the Department of Justice has countersued North Carolina. The state of North Carolina is also at risk for tremendous monetary losses due to a Civil Rights Act violation.

President Obama also plans to issue a strong recommendation to every public school district in the country to allow transgender students the ability to choose the bathroom facilities that correspond with their gender identity. This latest action from the Obama administration is a reflection of the overall need for change in law to add protections for the LGBT community.

Overall, these latest developments appear to be a positive step in the right direction for transgender people. Issues of discrimination are being highlighted and the courts now must decide whether federal laws prohibiting discrimination based on a person’s sex also prohibits discrimination based on a person’s gender identity. Words of encouragement from the attorney general of the United States when she said, “I have your back, DOJ has your back and the president of the United States has your back” is hopefully a sign that positive change is coming for the LGBT community.

Peter Billings is a criminal defense attorney with Billings & Barrett, LLC, a law firm in New Haven, Connecticut. Peter practices in New Haven, Meriden, and other parts of Connecticut. Billings & Barrett, LLC also practices family law.

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