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Case Name Berger v. United States Department of Justice PA-NC-0006
Docket / Court 5:16-cv-00240-FL ( E.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 in 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 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. That case is McCrory v. United States. On that same day, this suit was brought in the same court by the President Pro Tempore of the North Carolina Senate and the Speaker of the North Carolina House of Representatives. They sought for the same declaratory relief sought by Governor McCroy as well as a declaration by the court that the DOJ had exceeded the federal government’s separation of powers, violated the tenth amendment, and was arbitrary and capricious under section 706 of the Administrative Procedure Act (5 U.S.C. §§ 702-706).

Plaintiffs made a number of constitutional arguments to support their position. They began by alleging that transgender people aren’t a protected class under the Fourteenth Amendment, and thus cannot be protected under Title VII, which is authorized by the Fourteenth Amendment. They based their Tenth Amendment federalism claims primarily on the argument that regulation of bathrooms doesn’t affect interstate commerce and is thus a police power reserved to the states. They also suggested that there is a constitutional right to privacy in bathrooms that would be violated if states were forced to allow transgender individuals access to bathrooms in accordance with their gender identities.

Plaintiffs further made arguments that the DOJ’s position wasn’t acceptable under administrative law. Plaintiffs suggested that the DOJ’s reasoning on the VAWA would require North Carolina to provide prisoners claiming transgender status access to bathrooms and showers matching their gender identities, which they claimed would violate earlier regulations promulgated by the DOJ on that subject. They also claimed that the states couldn’t have foreseen that they would be forced to allow transgender individuals access to bathrooms when Title IX was enacted, which would mean that the DOJ was exceeding its authority by adding meaning to the statute that Congress hadn’t originally intended or expected it to have.

This case is currently assigned to Judge Louise Wood Flanagan. The plaintiffs have sought consolidation with the McCrory case, which is before Judge Terrence W. Boyle. On June 13, 2016, Judge Boyle issue an order stating that he would allow the cases to be consolidated. 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 yet 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 - 06/16/2016

compress summary

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Issues and Causes of Action
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Constitutional Clause
Commerce Power
Equal Protection
Accommodation / Leave
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)
School/University Facilities
School/University policies
Plaintiff Type
State Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) U.S. Department of Justice
Plaintiff Description The President pro tempore of the North Carolina senate and the Speaker of the North Carolina House of Representatives
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 yet
Source of Relief None yet
Filing Year 2016
Case Ongoing Yes
Case Listing PA-NC-0004 : United States v. State of North Carolina (M.D. N.C.)
PA-NC-0005 : North Carolinians for Privacy v. United States Department of Justice (E.D.N.C.)
PA-NC-0003 : McCrory v. United States (E.D.N.C.)
PA-NC-0002 : Carcaño v. McCrory (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 ]

5:16-cv-00240 (E.D.N.C.)
PA-NC-0006-9000.pdf | Detail
Date: 07/18/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PA-NC-0006-0001.pdf | Detail
Date: 05/09/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Flanagan, Louise W. (E.D.N.C.)
Plaintiff's Lawyers Duncan, Stuart Kyle (Louisiana)
PA-NC-0006-0001 | PA-NC-0006-9000
Potter, Robert Daniel (North Carolina)
PA-NC-0006-0001 | PA-NC-0006-9000
Defendant's Lawyers Gupta, Vanita (District of Columbia)
Lynch, Loretta (New York)
Other Lawyers Bowers, Karl S. (South Carolina)
Brooks, Brennan Tyler (North Carolina)
Gordon, Frank J. (North Carolina)
Stewart, William Woodley Jr. (North Carolina)

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