NCPW exclusive: Lawyer for transgender Virginia teen discusses federal case that could blow up HB2

When North Carolina Gov. Pat McCrory signed the highly controversial House Bill 2 in late March, Joshua Block was doing the same thing he’s been doing most days since January: waiting for a potentially seismic court decision from the U.S. Court of Appeals for the Fourth Circuit that could play a massive role in North Carolina’s anti-LGBT legislation.

Block is the ACLU attorney who represents Gavin Grimm, a 16-year-old transgender boy battling his school system in Virginia for the right to use the restroom consistent with his gender identity. Grimm had been using the boys’ restroom in his Gloucester County high school before parents’ complaints spurred a new system-wide policy forcing Grimm to use the girls’ bathroom or his own, isolated restroom.

Contending that the school system’s decision is discriminatory and stigmatizing for the teenager, Grimm and his lawyers are arguing that the school system’s policy is a breach of Title IX of federal education law, which protects against gender discrimination in federally funded schools.

Given that the U.S. Department of Education handed down guidelines two years ago specifying that Title IX protections should be applied to transgender students, ACLU lawyers say the anti-LGBT policies could jeopardize schools’ allotment of federal dollars in North Carolina—about $4.5 billion—and in Grimm’s school district.

A district court judge in Virginia sided against Grimm in September and it was subsequently appealed to the Fourth Circuit Court of Appeals. Yet, as Policy Watch’s own Sharon McCloskey reported last month, appeals court judges offered some stiff questioning of school board lawyers.

That decision, expected any day now, could be precedent setting. Should Grimm and the ACLU win its case, North Carolina’s contention that its own House Bill 2 does not run afoul of Title IX would clearly be called into question.

Policy Watch spoke to Block Tuesday about the case and the ongoing firestorm in North Carolina over House Bill 2.

PW: What was your first thought upon hearing of H.B. 2’s passage in North Carolina?

JB: There are so many extremely concerning things about that legislation in terms of how it relates to Gavin’s suit. I think that it strikes me as extremely reckless for North Carolina to move forward with a law based on the notion that Title IX does not somehow apply to these sorts of restroom policies when a case raising very similar issues is pending in the Fourth Circuit and could be decided any day now. The governor is well aware of Gavin’s case because he filed an amicus brief in that case. Despite that, North Carolina, the governor and legislators supporting H.B. 2 have been quoting from or citing the district court opinion in (Gavin’s case). They don’t know whether that legislation will be upheld or not. It seems a little bit rash to move forward without at least waiting to see what the Fourth Circuit says in Gavin’s case.

PW: I know you’re expecting a decision any day. Any predictions?

JB: I learned not to make predictions. I think your colleague quoted from some of the questions in the oral arguments a while back. Some of those questions speak for themselves. You can’t predict how a panel will rule just on the questions they ask, but some of the judges had some tough questions for the school board’s attorney. North Carolina should be prepared to face similar questions in court in the legal challenge to their law.

If common sense and compassion isn’t enough to convince a legislator to do the right thing, you would think at least the financial consequences would be. If the legislature is determined to run headlong in this quagmire without even waiting to see what the Court of Appeals is going to say, they should put away a lot of money for a rainy day to cover the consequences.

— Joshua Block

PW: We’ve heard from President Obama’s administration that public schools should protect these students. Do you think this is a situation where the writing is on the wall and we have a direction that we’re headed as a society, despite the legislature’s actions? Or is it more complicated than that?

JB: I think that the polls consistently show a huge majority of people support anti-discrimination protections for LGBT people. These protections already exist in 22 states and the District of Columbia. In restroom policies in states across the country and in federal office buildings across the country, trans people are able to use restrooms consistent with their gender identity, just like anyone else is, and there is zero record of it creating the sorts of problems that the sponsors of H.B. 2 seem to be talking about.

I think what the law reflects is a desire to wish away the existence of trans people at all and to deny that gender dysphoria is even a real thing and perpetuate the idea that there is no distinction between a trans woman and a man in a dress. That’s not just rowing against the tide of social and legal changes. It’s rowing against the tide of science. It’s not just a denial of what the law is, but it’s a denial of what the reality is.

PW: What’s it like to be litigating a case that could have major implications for how this issue is handled nationally?

JB: It feels like you have a lot of responsibility, and it definitely feels like there’s a weight on your shoulders of knowing what the broader implications could be. But I have to say that doesn’t even compare to the weight on your shoulders of knowing what effect this will have on your client.

I’m constantly amazed at Gavin’s courage and resilience in the face of what he’s gone through. I just hope that the representation we’ve given to him matches the high standards that he’s set for himself. I have to say that’s at the forefront of my mind whenever I do anything in the case.

I think obviously these cases have implications more broadly, but it’s also important not to get lost in viewing it as a tug of war between different organizations and to realize these are cases about real human beings suffering real harm as a result of these policies. Gavin’s case is a perfect example of that.

PW: The N.C. General Assembly will be coming back into session later this month. We’ve had a number of folks call for a repeal of House Bill 2 at this point. The governor has said he’s open to perhaps amending or making some small changes, but largely the leadership in the legislature seems to be standing firm on this right now. Considering the way this case is going and the national debate, is there any advice you would give North Carolina legislators right now?

JB: They should appropriate a lot of funds to pay for legal fees and to make up for the federal funding they’ll lose as a result of this law. When a state passes a law like this, it’s basically a massive tax increase because they are throwing money away to make an ideological point.

If common sense and compassion isn’t enough to convince a legislator to do the right thing, you would think at least the financial consequences would be. If the legislature is determined to run headlong in this quagmire without even waiting to see what the Court of Appeals is going to say, they should put away a lot of money for a rainy day to cover the consequences.

North Carolina has already just finished paying out money to defend its own constitutional law marriage ban. It seems like they’re determined to run up another bill.