Brynn Tannehill, a board member for the Trans United Fund, said the governor’s decision did not surprise her.
“This is almost a non-event considering that the lawsuit goes on, (House Bill 2) is still in place, the trial isn’t going to be until May 2017 and this may have been a, for the governor, a good tactical move,” she said.
The governor’s decision to drop the lawsuit followed successive announcements from the NCAA and ACC pulling championship games from the state last week, citing concerns over HB2.
Tannehill said North Carolina is looking to stall the HB2 lawsuit in the 4th U.S. Circuit Court of Appeals while the 5th U.S. Circuit Court is trying to move its case — a Texas federal court case started last month about the Title IX interpretation— along quickly.
Nathan Smith, policy director of the Gay, Lesbian & Straight Education Network, said the preliminary injunction issued by the Texas court was disappointing because the court challenged the Department of Education’s interpretation of Title IX.
“We’re disappointed that the school year has essentially started for pretty much every student across the country and that school year is starting with trans and gender nonconforming students in many cases continuing to face discrimination,” he said.
Smith said the judge from the Texas court decision has a history of anti-LGBT decisions.
Maxine Eichner, a UNC law professor, said the judge in Texas is more sympathetic to North Carolina’s argument than the current N.C. judge presiding over the HB2 lawsuit — Judge Thomas Schroeder.
In August, Schroeder issued a preliminary injunction for the HB2 lawsuit that sided with the plaintiffs and was in favor of the U.S. Department of Education’s guidance on Title IX.
“At least before the preliminary injunction, Schroeder would have looked like a good judge, a sympathetic judge to their claims,” Eichner said.
“In the aftermath of the judge granting release on the Title IX claims, certainly the judge in Texas looks a heck of a lot better from their perspective.”
Tannehill said there is a strong likelihood one of these cases will make its way to the U.S. Supreme Court.
The makeup of the Supreme Court, which is subject to change over the coming months, will play a big role in the decision.
“Right now there is a 4-4 court and there is a strong probability that replacing Scalia with another staunch conservative is going to result in loss (for LGBTQ rights),” she said.