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Duke professors predict future of House Bill 2 after federal injunction

<p>A federal court issued an injunction Friday against the University of North Carolina, preventing it from enforcing House Bill 2.</p>

A federal court issued an injunction Friday against the University of North Carolina, preventing it from enforcing House Bill 2.

Duke professors said that Friday's federal injunction blocking portions of the controversial House Bill 2 at University of North Carolina foreshadows an ultimate ruling on the case later this year.

Federal district judge Thomas Schroeder's injunction, which will run until Nov. 14, prohibits UNC from enforcing the bathroom-related “biological sex” portions of the legislation against multiple transgender plaintiffs who had sued Governor Pat McCrory and other state officials. The expiration of the injunction coincides with the resumption of federal hearings aimed at ultimately deciding on the constitutionality of the bill. Jane Wettach, clinical professor of law, noted that the legislative act has done damage on the state’s standing nationwide.

“The enforcement of HB2 has already hurt the reputation of North Carolina, the University of North Carolina and, derivatively, Duke University,” Wettach wrote in an email.

The UNC system issued a statement Friday saying they would follow the ruling of the district court.

“Our attorneys are still in the process of reviewing the court’s 83-page order, and we will fully comply with its directive,” officials from the university system wrote in a statement. “We have long said that the University has not and will not be taking steps to enforce HB2.”

An April memorandum issued by UNC system President Margaret Spellings to constituent universities and the North Carolina School of Science and Mathematics said that all schools must act in accordance with HB2.

However, the memo noted that the law does not contain any enforcement provisions for its bathroom requirements.

Shortly afterwards, leaders at UNC-Chapel Hill, including Chancellor Carol Folt, issued a statement also noting that the law contained no method of enforcement and that the schools will add more gender-neutral restrooms to campus.

“We have added and will continue to add public gender-neutral single-use restrooms and changing facilities throughout our campus and we will be adding additional signage,” they wrote.

The statement by the UNC system after Friday's injunction emphasized that the university does not “discriminate on the basis of sex, sexual orientation or gender identity,” and had no part in endorsing HB2.

“As President Spellings has emphasized all along, the University has been caught in the middle of a conflict that we did not create between state law and federal guidance,” it read.

The injunction is a promising move for opponents of HB2 based on previous litigation, said Pope McCorkle, associate professor of the practice in the Sanford School of Public Policy.

“There is the implication that [Schroeder] is very skeptical about the constitutionality of HB2,” he said. “With the kind of questions that he was asking—this doesn’t have any enforcement mechanism. Why is it law then? How, if it's law, is it going to get enforced—it certainly seems like he’s very, very skeptical.”

In April, the United States Court of Appeals for the Fourth Circuit ruled that a transgender student in Virginia could use the bathroom that matched his gender identity.

Schroeder wrote in the injunction that the Fourth Circuit decision in the Virginia “remains the law in this circuit.”

Wettach added that she anticipates if Schroeder's ruling is taken to the Supreme Court, it will eventually be affirmed.

“The US Supreme Court has only eight justices right now due to the Senate’s refusal to act on President Obama’s nomination, and those eight justices often split 4-4 on controversial social issues,” she wrote. “If the Court were to take up the case and split 4-4, the Fourth Circuit’s decision would be upheld.”

McCorkle noted that given Schroeder's political track record, it is unlikely that the Supreme Court would overturn one of his rulings.

“I can't see—with Judge Schroeder being a Bush appointee and a pretty Republican judge—the Supreme Court overturning a Schroeder opinion,” he said.


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