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Case Name North Carolinians for Privacy v. United States Department of Justice PA-NC-0005
Docket / Court 5:16-cv-00245-FL ( M.D. N.C. )
Additional Docket(s) [ 16-845 ]  M.D. N.C.
State/Territory North Carolina
Case Type(s) 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 (“H.B. 2”), which was passed on March 23, 2016. For the others, see related cases section, below.

On February 22, 2016, the Charlotte City Council passed Ordinance 7056, which ... read more >
This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (“H.B. 2”), which was passed on 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, Carcaño. Previously, when the plaintiffs in another lawsuit defending HB2, Berger v. United States DOJ, sought consolidation with Carcaño, 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 Carcaño, noting that the plaintiffs in this case were challenging the DOJ’s position that HB2 violates Title IX while the plaintiffs in the Carcaño and Berger cases were not.

On June 29, 2016, Judge Louise Wood Flannagan denied the motion to consolidate the cases, holding that Carcaño was a less rigorous case, while Berger and the present case raised multiple different questions. Nevertheless, at the same time, the court decided to transfer the cases to the Middle District, holding they should be tried alongside Carcaño because they involved common questions and was filed first. The court was also stated that the transfer would benefit the parties, who would have a single judge rendering timely decisions and coordinating the proceedings, and the public, that would be benefited by consistent decisions by the same judge.

The case was transferred to the Middle District on June 30, 2016 (Docket No. 1:16-cv-00845). On August 22, 2016, the plaintiff filed its first amended complaint, for the purpose of adding individual plaintiffs and streamlining the language of the original claims, without adding new ones. However, on August 31, 2016, without explanation, the plaintiffs filed a notice of voluntary dismissal of the case without prejudice to the defendants. As a result, the case was closed.

Ryan Berry - 06/05/2016
Daniele de Oliveira Nunes - 10/17/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
Free Exercise Clause
Gender identity
Sexual orientatation
Access to public accommodations - governmental
Access to public accommodations - privately owned
Bathing and hygiene
Disparate Impact
Disparate Treatment
Government Services (specify)
Reasonable Accommodations
Reasonable Modifications
School/University Facilities
School/University policies
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) U.S. Department of Justice
Plaintiff Description An unincorporated, nonprofit association created to support North Carolina's restrictions on transgender bathroom access, five students at elementary, middle and high schools throughout North Carolina, their parents, and one parent of a high school student.
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 2016
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-0003 : McCrory v. United States (E.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]
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 ]

5:16-cv-245 (E.D.N.C.)
PA-NC-0005-9000.pdf | Detail
Date: 07/18/2016
Source: PACER [Public Access to Court Electronic Records]
1:16-cv-00845-TDS-JEP (M.D. N.C.)
PA-NC-0005-9001.pdf | Detail
Date: 12/16/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PA-NC-0005-0001.pdf | Detail
Date: 05/10/2016
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 34] (M.D. N.C.)
PA-NC-0005-0003.pdf | Detail
Date: 06/29/2016
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint [ECF# 58]
PA-NC-0005-0002.pdf | Detail
Date: 08/22/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Flanagan, Louise W. (E.D.N.C.)
PA-NC-0005-0003 | PA-NC-0005-9000
Peake, Joi Elizabeth (State Trial Court, M.D. N.C.) [Magistrate]
Schroeder, Thomas D. (M.D. N.C.)
Plaintiff's Lawyers Campbell, James A. (Arizona)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
Connelly, Kenneth J (Arizona)
PA-NC-0005-0002 | PA-NC-0005-9001
Cortman, David A. (Georgia)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
Dalton, J. Caleb (Arizona)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
Dewart, Deborah Jane (North Carolina)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
La Rue, Joseph E. (Arizona)
PA-NC-0005-0001 | PA-NC-0005-9000 | PA-NC-0005-9001
LaRue, Joseph Eugene (Arizona)
Sharp, John Matthew (Georgia)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
Tedesco, Jeremy D. (Arizona)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
Waggoner, Kristen Kellie (Washington)
PA-NC-0005-0001 | PA-NC-0005-0002 | PA-NC-0005-9000 | PA-NC-0005-9001
Defendant's Lawyers Berwick, Benjamin Leon (District of Columbia)
Bickford, James (District of Columbia)
PA-NC-0005-9000 | PA-NC-0005-9001
Gardner, Joshua Edward (District of Columbia)
James, Michael (North Carolina)
PA-NC-0005-9000 | PA-NC-0005-9001
Lee, Jason (District of Columbia)
Other Lawyers Bowers, Karl S. (South Carolina)
Brooks, Brennan Tyler (North Carolina)
Duncan, Stuart Kyle (Louisiana)
Gordon, Frank J. (North Carolina)
Nimocks, David A. (Texas)
Pfeiffer, Sonya (North Carolina)
Potter, Robert Daniel (North Carolina)
Schaerr, Gene C. (District of Columbia)
Stephens, Robert C. (North Carolina)
Stewart, William Woodley Jr. (North Carolina)

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