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Case Name McCrory v. United States PA-NC-0003
Docket / Court 5:16-cv-00238 ( E.D.N.C. )
State/Territory North Carolina
Case Type(s) Education
Equal Employment
Public Accomm./Contracting
Special Collection Transgender Bathroom Access Cases
Case Summary
This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (HB2), which was passed on March 23, 2016. For the others, see the ... read more >
This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (HB2), which was passed on March 23, 2016. For the others, see the case collection.

On May 9, 2016, North Carolina Governor Patrick McCrory and the Secretary of the North Carolina Department of Public Safety, filed this complaint in the Eastern District of North Carolina against the Attorney General of the United States, the Department of Justice, and the Department of Education. The plaintiff sought a declaratory judgement that NC House Bill 2 (known as “HB2”) did not violate Title VII of the Civil Rights Act or the Violence Against Women Act. HB2 required individuals to use the bathroom and changing facilities that corresponded to the biological sex listed on their birth certificates while in government buildings. It also prohibited municipalities in North Carolina from enacting anti-discrimination policies and removed the common-law and statutory right of action to enforce state anti-discrimination statutes in state courts.

This action was brought shortly after the plaintiff received a letter from the Justice Department, dated May 4, 2016, informing him that HB2 violated federal law. The letter stated that HB2 specifically violated Title VII of the Civil Rights Act of 1963, which forbids sex discrimination in employment; Title IX of the Educational Amendments Act of 1972, which forbids sex discrimination in education; and the Violence Against Women Reauthorization Act of 2013 (“VAWA”). The letter requested the plaintiff respond, stating he would remedy the violation and confirm that North Carolina would implement HB2. His response was due on May 9, 2016. In lieu of a response, this suit seeking declaratory judgement was filed.

That same day, the United States filed suit in the Middle District of North Carolina, naming Governor McCrory, the North Carolina Department of Public Safety, and the University of North Carolina and its Board of Governor as defendants. This complaint requested a declaratory judgment that HB2 was discriminatory under Title VII, VAWA, and Title IX of the Education Amendments of 1972.

In his complaint, the plaintiff argued that transgendered individuals weren’t a protected class under Title VII. In the alternative, even if the VAWA included gender identity as a protected class, he argued that HB2 wasn’t discriminatory, as it allowed accommodations for special circumstances that would include accommodations for transgender individuals.

For context, many people who identify as transgender either cannot afford or do not want to undergo sex reassignment surgery. In North Carolina, only those who undergo sex reassignment surgery can change the biological sex written on their birth certificates. At the time of HB2, the state legislation had changed the definition of sex in the state's anti-discrimination law to "the physical condition of being male or female, which is stated on a person's birth certificate.” This limited definition of sex prevented transgendered North Carolinians from being legally viewed as a class of people vulnerable to sex discrimination.

On February 22, 2016, the Charlotte City Council had passed Ordinance 7056, which prohibited discrimination on the basis of sexual orientation or gender identity in public accommodations, passenger vehicles for hire, and city contractors. Trans citizens would be protected from discrimination under this ordinance. The ordinance was set to take effect on April 1, 2016. HB2 was passed and signed by the Governor between the passage of Ordinance 7056 and its intended date of effect. HB2’s passage meant that Charlotte’s city ordinance could not go into effect and that future municipal ordinances designed to protect trans citizens would also be prohibited from overriding state law.

In this case, on May 17, the plaintiff asked the court to transfer the case to the Middle District of North Carolina, where cases challenging HB2 had been filed by the ACLU and the DOJ. Those cases were Carcano v. McCrory and United States v. State of North Carolina. The court denied this motion to transfer on June 7, 2016, citing the rules of federal procedure and the case proceeded.

Two other cases were brought in this district by private parties against the DOJ on the same topic—Berger v. United States Department of Justice and North Carolinians for Privacy v. United States Department of Justice. The plaintiffs in these related cases, seeking to uphold the legal validity of HB2, filed motions for consolidation with this case, on May 23 and May 24, respectively. On June 13, Judge Terrence Boyle issued an order indicating that he would allow this case to be consolidated with Berger and, on June 29, the court also ordered North Carolinians for Privacy consolidated.

This latter consolidation was done after the plaintiff wrote in opposition to North Carolinians for Privacy consolidation with his. In his opposition, the plaintiff argued that their complaint dealt with Title IX, which pertained to the use of sex-segregated facilities by transgender students, which the plaintiffs claimed violated the constitutional rights of parents and children. In his opposition, the plaintiff opposed consolidation, arguing that his complaint was focused on the validity of HB2 as it pertained to changing facilities and restroom use in government facilities.

On September 16, 2016, plaintiffs filed a notice of voluntary dismissal of their claims, without prejudice, as to all defendants. In their notice of dismissal, they argued that the claims made in this lawsuit were now being asserted as counterclaims in the lawsuit brought by the United States in the Middle District Court of North Carolina. This counterclaim, the plaintiffs argued, also sought a declaratory judgement on the validity of HB2 and would sufficiently protect the State’s interest. The case is now closed.

Ryan Berry - 06/16/2016
Mary Book - 11/12/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Federalism
Discrimination-area
Accommodation / Leave
Discrimination-basis
Gender identity
Sex discrimination
Sexual orientatation
General
Access to public accommodations - governmental
Bathing and hygiene
Bathrooms
Buildings
Disparate Impact
Disparate Treatment
Gay/lesbian/transgender
Government Services (specify)
Plaintiff Type
State Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) U.S. Attorney General Loretta E. Lynch
U.S. Department of Education
U.S. Department of Justice
Plaintiff Description The North Carolina governor, Pat McCrory, and Secretary of the North Carolina Department of Public Safety.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Filing Year 2016
Case Closing Year 2017
Case Ongoing No
Case Listing PA-NC-0004 : United States v. State of North Carolina (M.D. N.C.)
PA-NC-0002 : Carcaño v. McCrory (M.D. N.C.)
PA-NC-0005 : North Carolinians for Privacy v. United States Department of Justice (M.D. N.C.)
PA-NC-0006 : Berger v. United States Department of Justice (E.D.N.C.)
Additional Resources
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  Dear Colleague Letter [rescinding prior letters relating to bathroom access for trans students]
U.S. Department of Education
Date: Feb. 22, 2017
By: Sandra Battle & T.E. Wheeler (U.S. Department of Education)
[ Detail ] [ PDF ] [ External Link ]

  Gloucester County School Board v. G.G. [Scotusblog page]
Scotusblog.com
Date: Feb. 7, 2017
(Scotusblog)
[ Detail ] [ External Link ]

  G.G. V. Gloucester County School Board -- ACLU's Case Page
ACLU
Date: Oct. 16, 2016
By: ACLU
[ Detail ] [ External Link ]

  Dear Colleague Letter on Transgender Students
www.ed.gov
Date: May 13, 2016
By: Catherine E. Lhamon and Vanita Gupta (U.S. Department of Justice Civil Rights Division)
[ Detail ] [ PDF ] [ External Link ]

  Examples of Policies and Emerging Practices for Supporting Transgender Students
www.ed.gov
Date: May 2016
By: United States Department of Education
[ Detail ] [ PDF ] [ External Link ]

Docket(s)
5:16-cv-00238-BO (E.D.N.C.)
PA-NC-0003-9000.pdf | Detail
Date: 01/19/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Notice to Gov. Pat McCrory [regarding violation of Civil Rights Act]
PA-NC-0003-0002.pdf | External Link | Detail
Date: 05/04/2016
Complaint [ECF# 1]
PA-NC-0003-0001.pdf | Detail
Date: 05/09/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 36] (E.D.N.C.)
PA-NC-0003-0003.pdf | Detail
Date: 06/13/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 43] (E.D.N.C.)
PA-NC-0003-0004.pdf | Detail
Date: 06/20/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Boyle, Terrence William (E.D.N.C.)
PA-NC-0003-0003 | PA-NC-0003-0004
Plaintiff's Lawyers Bowers, Karl S. (South Carolina)
PA-NC-0003-0001 | PA-NC-0003-9000
Brooks, Brennan Tyler (North Carolina)
PA-NC-0003-9000
Gordon, Frank J. (North Carolina)
PA-NC-0003-9000
Potter, Robert Daniel (North Carolina)
PA-NC-0003-9000
Stephens, Robert C. (North Carolina)
PA-NC-0003-0001
Stewart, William Woodley Jr. (North Carolina)
PA-NC-0003-0001 | PA-NC-0003-9000
Defendant's Lawyers Gupta, Vanita (District of Columbia)
PA-NC-0003-0002 | PA-NC-0003-9000
Lynch, Loretta (New York)
PA-NC-0003-9000
Other Lawyers Campbell, James A. (Arizona)
PA-NC-0003-9000
Cortman, David A. (Georgia)
PA-NC-0003-9000
Dalton, J. Caleb (Arizona)
PA-NC-0003-9000
Dewart, Deborah Jane (North Carolina)
PA-NC-0003-9000
Duncan, Stuart Kyle (Louisiana)
PA-NC-0003-9000
La Rue, Joseph E. (Arizona)
PA-NC-0003-9000
Sharp, John Matthew (Georgia)
PA-NC-0003-9000
Tedesco, Jeremy D. (Arizona)
PA-NC-0003-9000
Waggoner, Kristen Kellie (Washington)
PA-NC-0003-9000

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