This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (“H.B. 2”), which was passed in March 23, 2016. For the others, see the related cases section below.

On February 22, 2016, the Charlotte City Council passed Ordinance 7056, which prohibited discrimination on the basis of sexual orientation or gender identity in public accommodations, passenger vehicle for hire, and city contractors. The city ordinance was set to take effect on April 1, 2016.

In response, on March 23, 2016, the North Carolina legislature held a special session and passed House Bill 2; it was signed that same day by North Carolina Governor Pat McCrory. HB2 prohibited municipalities in North Carolina from enacting antidiscrimination policies and removed the statutory and common law private right of action to enforce state antidiscrimination statutes in state courts. It also required that, in government buildings, individuals only be permitted to use restrooms and changing facilities that corresponded to the sex on their birth certificates. For many transgender people, this prevented them from using the restroom consistent with their gender identity. (In North Carolina, only people who undergo sex reassignment surgery can change the sex on their birth certificates; some other jurisdictions have even more restrictive rules.) In addition, the legislation changed the definition of sex in the state's antidiscrimination law to "the physical condition of being male or female, which is stated on a person's birth certificate,” which prevented discrimination against transgender people from being classified as a type of sex discrimination.

On March 28, 2016, the ACLU and the Lambda Legal Defense Fund filed this complaint in the U.S. District Court for the Middle District of North Carolina, challenging the constitutionality and legality of HB2 under federal law. They sued under 42 U.S.C § 1983 and Title IX of the Education Amendments Act of 1972. Several transgender individuals, lesbian couples, the North Carolina Chapter of the ACLU, and the non-profit organization Equality North Carolina were the plaintiffs. They asked the court to declare most of HB2 unconstitutional or illegal under Title IX of the Educational Amendments Act of 1972; enjoin North Carolina from enforcing the illegal portions of HB2; and award plaintiffs costs, expenses, and attorneys’ fees. They also sought separate injunctive relief requiring the State of North Carolina to allow individuals to use single-sex facilities in accordance with their gender identity in public buildings, and requiring the state to allow local governments in North Carolina to enact and enforce antidiscrimination protections for LGBT people.

On May 25, 2016, Philip Berger, the President pro tempore of the North Carolina Senate, and Tim Moore, the Speaker of the North Carolina House of Representatives, motioned to intervene as defendants. The Court granted the motion on June 3, 2016.

One of the defendants, the University of North Carolina, also asked the judge to stay proceedings against them pending the final resolution of the cases G.G v. Gloucester School Board and United States v. North Carolina. The G.G. case, ED-VA-0002 in this Clearinghouse, was a Virginia case where a transgender student's high school denied him access to multioccupancy, gender-segregated facilities that matched his gender identity. The case made it to the Fourth Circuit Court of Appeals, where the court found that the district court judge had erred both in his refusal to consider evidence favoring the plaintiff when he denied their motion for preliminary injunctive relief, and in his failure to give deference to the DOE’s interpretation of Title IX when granting the defendants’ motion for summary judgment. The Circuit then remanded the case to the district court judge, who granted a preliminary injunction. United States v. North Carolina is a case filed by the U.S. Department of Justice against the State of North Carolina in which the DOJ made many of the same legal arguments made by the plaintiffs in this case, which was also in an early stage of litigation.

On August 26, 2016, the court granted in part and denied in part the plaintiffs' motion for preliminary injunction. Judge Thomas D. Schroeder concluded that the individual plaintiffs suing under Title IX were likely to succeed on the merits, so he granted the injunction with respect to that claim. The court was unconvinced, however, that the plaintiffs would win on their Equal Protection claims and also reserved ruling on the Due Process claims until further briefing. 203 F.Supp.3d 615. On August 29, 2016 the plaintiffs appealed to the United States Court of Appeals for the Fourth Circuit from the order denying in part their motion for preliminary injunction.

On November 21, 2016, the plaintiffs filed a third amended complaint that included a claim under Title VII of the Civil Rights Act of 1964 in addition to the Title IX, Due Process, and Equal Protection claims. On December 16, 2016, Judge Schroeder granted a motion for a stay of proceedings until G.G. has been decided by the Supreme Court.

On January 1, 2017 Roy Cooper assumed the office of Governor of North Carolina. During his victory speech then Governor-Elect Cooper stated his intention to repeal HB 2. The Supreme Court vacated and remanded G.G. back to the Fourth Circuit on March 6, 2017, in light of the DOE and DOJ's release of new interpretations of Title IX in February of 2017.

Shortly thereafter, the North Carolina Legislature and newly appointed Governor Roy Cooper enacted House Bill 142 which, among other things, repealed HB2. The repeal included a compromise that left many on both sides unhappy. It prevented municipalities from passing antidiscrimination laws until December 2020 and the legislature maintained the ability to regulate bathrooms.

On April 24, 2017, Judge Motz on the Fourth Circuit dismissed the interlocutory appeal of August 26, 2016. On May 2, 2017 Judge Schroeder lifted the preliminary injunction of August 26, 2016 with the agreement of all parties, because House Bill 142 repealed the basis for the Court’s prior order.

On September 7, 2017 the plaintiffs submitted a fourth amended complaint for declaratory and injunctive relief and nominal damages challenging the constitutionality of House Bill 142. The plaintiffs alleged that the bill was promoted as a repeal of HB 2 to attract business back to North Carolina but only passed through the General Assembly because, like HB 2, it continued to discriminate against transgender individuals with respect to the use of single-sex, multiple-user facilities, and continued to bar local government protections for LGBT people. The complaint quoted multiple NC lawmakers who publicly stated that HB 2’s bathroom ban, remained an integral part of HB 142. The complaint further alleged the harms that were of concern in HB 2 remained a concern in HB 142.

On October 18, 2017 the plaintiffs and Executive Branch defendants entered a joint motion of consent decree, stating that the Executive Branch was enjoined from taking certain specified actions under Section 2 of H.B. 142 and, with respect to public facilities that are subject to the Executive Branch Defendants’ control or supervision, HB 142, did not prevent transgender people from using the bathroom that aligned with their gender identity. Both parties submitted memorandum in support of the joint motion for consent decree.

On October 23, 2017 intervenor and the University of North Carolina defendants submitted motions to dismiss the plaintiffs’ claims due to subject matter jurisdiction. On November 2, 2017 the intervenor defendants asked the court to extend the time for the parties to respond to the consent decree, in light of the motion to dismiss claims. Judge Schroeder ordered the extension of 30 days following the date of the court’s disposition of the pending motions to dismiss the plaintiffs’ fourth amended complaint. After several extensions, UNC’s motion to dismiss the fourth amended complaint for failure to state a claim was submitted to Judge Thomas D. Schroeder on January 17, 2018.

Judge Schroeder granted in part and denied in part the motions to dismiss. The court found that the plaintiffs lacked standing as to their substantive due process, Title IX and Title VII claims based on alleged legal uncertainty caused by HB142 but did have standing to pursue their equal protection claims relating to the preemption provisions of Sections 2 and 3, except as to the claims against the President of the UNC. The court declined to dismiss the contingent claims involving HB2 and reserved ruling on the nominal damages claims for alleged Title VII and IX violations during the time HB2 was in effect. The court found that Plaintiffs failed to state a claim based on Section 2 of HB2 but succeeded in stating a claim based on Section 3. Thus, the court dismissed claims 1, 2, 6, and 7 against UNC without prejudice but sustained claims 3, 4, and 5. The court dismissed claims 1 and 2 against the intervenor-defendants without prejudice, but allowed the equal protection claim in count 2 to survive as well as claims 3, 4, and 5.

On December 21, 2018, plaintiffs and the Executive Branch defendants filed a joint motion for entry of a consent decree. The consent decree provided that nothing in HB142 could be construed to prevent transgender people from lawfully using public facilities in accordance with their gender identity and permanently enjoined the Executive Branch defendants in their official capacities, and all successors, officers, and employees, from taking certain specified actions under Section 2 of H.B. 142 as well as forbidding Executive Branch Defendants from enforcing Section 3 to restrict any local government from interpreting other existing laws as protecting against discrimination on the basis of sexual orientation, gender identity or gender expression. The parties agreed to each bear their own fees, expenses, and costs and to dismiss all remaining claims against the Executive Branch defendants with prejudice. The intervenor-defendants opposed the joint motion for a consent decree, believing that it manufactured relief for dismissed claims that the Court lacked jurisdiction over, and that it did not reflect a true settlement of legal conflict, but rather was an effort to obtain a political result from the court that they could not achieve through political means.

As of March 20, 2019, this case is ongoing.

Ryan Berry - 06/16/2016
Salvatore Mancina - 03/27/2017
Mary Kate Sickel - 11/02/2017
Erica Becker - 03/20/2019


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