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 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 prohibits municipalities in North Carolina from enacting anti-discrimination policies and removes the statutory and common-law private right of action to enforce state anti-discrimination statutes in state courts. It also requires that in government buildings, individuals may only use restrooms and changing facilities that correspond to the sex on their birth certificates. For many transgender people, this prevents 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 changes 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 prevents 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 violates federal law. The DOJ asked the Governor to respond by close of business on May 9 that he will 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 declaratory relief that HB2 didn’t violate federal law. The next day, on May 10, this suit was brought by an unincorporated, non-profit association which seems to serve primarily as vehicle for the right-wing Christian advocacy group Alliance Defending Freedom to challenge the DOJ's and DOE’s positions on transgender bathroom access. They sought declaratory relief under 28 U.S.C.A. §§ 2201, asking the court to rule that the North Carolina Law doesn’t violate Title IX of The Education Amendment, Title VII of the Civil Rights Act, or the Violence Against Women Act of 2013 (VAWA, 42 U.S.C. § 13925(b)(13)). They asked the court to find that the DOJ and DOE had violated the constitution and federal law by threatening North Carolina with legal action. And they asked the court to enjoin those agencies from any action against North Carolina for enforcing HB2s restrictions on transgender bathroom access.

On May 24, plaintiffs asked the judge assigned to this case, Judge Louise Wood Flannagan, to consolidate this case with the case brought against the DOJ by Governor McCroy (see below in related case section). Previously, when the plaintiffs in another lawsuit defending HB2, Berger v. United States DOJ (also in the related cases section), sought consolidation with the McCroy case, governor McCrory had indicated that he would oppose consolidation if it interfered with his request to have the case moved to the middle district of North Carolina. On June 14, 2016, the DOJ filed a memorandum opposing consolidation of this case with the McCrory case, noting that the plaintiffs in this case are challenging the DOJ’s position that HB2 violates Title IX while the plaintiffs in the McCrory and Berger cases are not. On June 15, Judge Flannagan scheduled a hearing to determine whether the cases should be consolidated.

This case is still in an early stage. As of June 16, 2016, Judge Flannagan has not decided whether to grant the plaintiffs any of the relief that they have asked for. The hearing to determine whether the cases should be consolidated is scheduled for June 21, 2016

Ryan Berry - 06/05/2016


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