University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name United States v. State of North Carolina PA-NC-0004
Docket / Court 1:16-cv-00425 ( M.D. N.C. )
State/Territory North Carolina
Case Type(s) Education
Equal Employment
Public Accomm./Contracting
Special Collection Transgender Bathroom Access Cases
Attorney Organization U.S. Dept. of Justice Civil Rights Division
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 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 anti-discrimination policies and removed the statutory and common-law private right of action to enforce state anti-discrimination statutes in state courts. It also required that individuals only be permitted to use bathrooms and changing facilities that correspond to the sex on their birth certificates while in government buildings. 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 anti-discrimination 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 May 4, in a letter to Governor Pat McCrory, the Justice Department informed him that the U.S. had concluded that HB2 violated federal law. The DOJ asked the Governor to respond by close of business on May 9, and that he remedy the violations, "including by confirming that the State will not comply with or implement H.B. 2."

Instead of providing the demanded assurances, the Governor sued the United States on the morning of May 9, in the Eastern District of North Carolina, seeking a declaratory judgment that HB2 did not violate Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e et seq.), or the Violence Against Woman Act (42 U.S.C. § 13925(b)(13)). That case is in the Clearinghouse as PA-NC-0003, and is described there. A few hours later, the U.S. filed this lawsuit, seeking to enjoin operation of HB2, in the U.S District Court for the Middle District of North Carolina. The DOJ sued the State of North Carolina under Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e et seq.), under Title IX of the Education Amendments Act of 1972 (20 U.S.C. §§ 1681 et seq.), and under the Violence Against Women Reauthorization Act (42 U.S.C. § 13925(b)(13)). The DOJ sought declaratory and injunctive relief. Specifically, the U.S. asked the Court to find that HB 2’s Part I—the part that instructs public agencies to deny transgender individuals access to multiple-occupancy bathrooms and changing facilities consistent with their gender identity--violated federal law, and to issue an injunction ordering the state to stop violating the federal laws in question.

North Carolina’s former Attorney General, Roy Cooper, had said that he agreed that HB2 is illegal, and declined to defend it against this and the other lawsuits challenging it.

On June 10, 2016 the United States and the Defendants issued a joint motion to enjoin automatic suspension of funds received under the Violence Against Women Act that prohibits recipients of federal funds administered by the Department of Justice’s Office on Violence Against Women (“OVW”) from engaging in discrimination based on sex and gender identity. The United States and the Defendants agreed that the suspension of funds would on balance harm the public interest. On June 23, 2016, Judge Thomas D. Schroeder granted the parties' joint motion to enjoin the United States from automatically withholding funds. 192 F.Supp.3d 620.

On June 29, 2016, Judge Thomas D. Schroeder granted Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House of Representatives, the right to permissively intervene as defendants in the case. Several other private individuals requested to intervene on either side of the case and their motions were denied.

On July 14, 2016, Judge Thomas D. Schroeder ordered that parties in the four related cases of HB2 file a short joint notice identifying any agreements reached and explaining their respective positions. On July 25, 2016, the Court consolidated this case with Carcaño v. McCrory(1:16CV236), Berger v. United States (1:16CV844), and North Carolinians for Privacy v. United States (1:16CV845) for discovery purposes only. After this consolidation, the Plaintiffs voluntarily dismissed Berger v. United States on July 28, 2016, and North Carolinians for Privacy v. United States on August 31, 2016.

On August 12, 2016, the Defendants submitted motions to stay the proceedings in light of the Supreme Court hearing the G.G. case regarding similar issues. Ten days later, the United States submitted a response in opposition to the Defendants' request to stay the proceedings. The United States stated that the Defendants were violating federal laws and that the proceedings should not be delayed in anticipation of a change in the law.

On December 16, 2016, upon the joint motion of the parties and in the interest of judicial economy, the court stayed the proceedings in the case and in the related case of Carcano v. McCrory (1:16CV236) pending disposition in the Supreme Court of Gloucester County School Board v. G.G., No. 16- 273 (S. Ct.). At the United States’ request, the court did not include the United States’ pending motion for preliminary injunction in the stay.

On January 1, 2017, Roy Cooper, who opposed HB2 as NC Attorney General, took office as Governor of North Carolina, changing the Governor’s position. On February 22, 2017, the Department of Justice and the Department of Education, under President Trump, withdrew and rescinded their earlier guidance documents, changing the federal government’s position. On March 2, 2017, the Plaintiff submitted a request to expand the stay (granted on December 16, 2016) to include the preliminary injunction request, on the grounds that the United States had withdrawn two guidance documents upon which the motion was based.

On March 28, 2017, the Plaintiff submitted a joint status report with the Carcaño Plaintiffs, UNC Defendants, Legislative Defendants, and the State Defendants. The United States aligned itself with the UNC and Legislative Defendants requesting that the court leave the stay entered on December 16, 2016, until resolution of the pending appeals in G.G. v. Gloucester County School Board (4th Cir. No. 15-2056) and Carcaño v. Cooper (4th Cir. No. 16-1989). The Carcaño Plaintiffs and the State Defendants requested that the stay be lifted so that parties could confer about a new discovery plan.

On March 30, 2017, the North Carolina Legislature, and the newly appointed Governor enacted House Bill 142 which, among other things, repealed HB2. The repeal included a compromise that left many on both sides unhappy. The compromise prevented municipalities from passing anti-discrimination laws until December 2020, and the legislature still had the ability to regulate bathrooms.

On April 14, 2017, the Plaintiff filed a notice of voluntary dismissal stating that in light of the passage of House Bill 142, the claims and causes of actions against the Defendants would be dismissed with prejudice, which closed the case.

Ryan Berry - 05/31/2016
Mary Kate Sickel - 01/14/2018

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Issues and Causes of Action
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Affected Gender
Constitutional Clause
Supremacy Clause
Accommodation / Leave
Other Conditions of Employment (including assignment, transfer, hours, working conditions, etc)
Gender identity
Sex discrimination
Sexual orientatation
Access to public accommodations - governmental
Bathing and hygiene
Disparate Impact
Disparate Treatment
School/University Facilities
School/University policies
Plaintiff Type
U.S. Dept of Justice plaintiff
Type of Facility
Causes of Action Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.
Title VII (including PDA), 42 U.S.C. § 2000e
Defendant(s) State of North Carolina
Plaintiff Description U.S Department of Justice Civil Rights Division
Indexed Lawyer Organizations U.S. Dept. of Justice Civil Rights Division
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Form of Settlement Voluntary Dismissal
Filing Year 2016
Case Closing Year 2017
Case Ongoing No
Case Listing PA-NC-0003 : McCrory v. United States (E.D.N.C.)
PA-NC-0002 : Carcaño v. McCrory (M.D. N.C.)
PA-NC-0006 : Berger v. United States Department of Justice (E.D.N.C.)
PA-NC-0005 : North Carolinians for Privacy v. United States Department of Justice (M.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]
Date: Feb. 7, 2017
[ Detail ] [ External Link ]

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

  Dear Colleague Letter on Transgender Students
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
Date: May 2016
By: United States Department of Education
[ Detail ] [ PDF ] [ External Link ]

1:16-cv-00425 (M.D. N.C.)
PA-NC-0004-9000.pdf | Detail
Date: 05/17/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PA-NC-0004-0001.pdf | Detail
Date: 05/09/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Schroeder, Thomas D. (M.D. N.C.)
Plaintiff's Lawyers Bensing, Dwayne J. (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Cummings, Torey B. (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Davidson, Jon Warren (California)
Keveney, Sean R. (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Kisch, Lori B. (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Pellegrino, Whitney Marin (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Phoenix, Candyce Danielle (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Rand, Ripley (North Carolina)
PA-NC-0004-0001 | PA-NC-0004-9000
Stoughton, Corey L. (District of Columbia)
PA-NC-0004-0001 | PA-NC-0004-9000
Defendant's Lawyers Duncan, S. Kyle (District of Columbia)
Potter, Robert Daniel (North Carolina)

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