On October 25, 2016 NELA joined a group of civil rights organizations, led by Bay Area Lawyers for Individual Freedom (BALIF) and the Impact Fund, in signing onto an amicus brief in Carcaño v. McCrory, currently pending in U.S. Court of Appeals for the Fourth Circuit. This case involves a challenge to a portion of North Carolina’s notorious “H.B. 2” law that would prevent transgender persons from using public restrooms in line with their gender identity, if that identity does not match the gender on their birth certificate. The plaintiffs in this case sought a preliminary injunction against enforcement of the provision as applied to all transgender persons who reside in or visit North Carolina. The district court, however, chose only to enjoin enforcement of the law against the plaintiffs.
The amicus brief supports the plaintiffs’ position on appeal that because the restrictions at issue constitute improper sex stereotyping that amount to unlawful gender discrimination, they are unlikely to satisfy the applicable constitutional scrutiny on the merits. The brief highlights the significant body of law confirming that targeting transgender people for their perceived gender non-conformity is sex stereotyping in violation of constitutional and statutory prohibitions on sex discrimination. H.B. 2 is no different. A broader injunction is thus warranted under the Equal Protection Clause to protect the right of all transgender people who live in or visit North Carolina to be free from sex discrimination in public spaces.
While the discrimination at issue in this case extends beyond the workplace, joining this brief is consistent with the commitment NELA has made in our amicus priorities to “[a]rgue for broad interpretation of statutes and development of laws protecting workers on the basis of sexual orientation and gender identity,” as many transgender workers are not protected by the narrow injunction granted by the district court. In addition, the brief draws heavily from arguments regarding the intersection among gender identity, stereotyping, and sex discrimination that have been developed in employment cases.
The amicus brief was drafted by NELA member Lindsay Nako and Lynnette Miner (Impact Fund, Berkeley, CA), and the amicus sign-on outreach was coordinated by NELA member Julie Wilensky (Disability Rights California, Oakland, CA) on behalf of BALIF. The brief may be downloaded from the Amicus Library.