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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 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 while in government buildings, individuals only use restrooms and changing facilities that correspond to the sex on their birth certificates. 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.” This change 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 that he would 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 United States District Court for 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 the same declaratory relief sought by Governor McCrory 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 weren't a protected class under the Fourteenth Amendment, and thus could not 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 didn't affect interstate commerce and were thus a police power reserved to the states. They also suggested that there was 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 was assigned to Judge Louise Wood Flanagan. The plaintiffs sought consolidation with the McCrory case, which was before Judge Terrence W. Boyle. On June 13, 2016, Judge Boyle issued an order stating that he would allow the cases to be consolidated. On June 15, Judge Flanagan scheduled a hearing to determine whether the cases should be consolidated.

In the hearing, the court denied the motion to consolidate and instead transferred this case to the Middle District of North Carolina, where three other HB2 cases were in progress, with no objection from any of the parties. The transfer order was given on June 29, 2016, and this case was assigned to Judge Thomas D. Schroeder and Magistrate Judge Joi Elizabeth Peake.

On July 14, the judge ordered the parties in this case and the three associated HB2 cases in North Carolina to appear on August 1 on their various motions pending in a consolidated hearing, and indicated the trials would take place in October or November. The Judge requested they file a joint statement of agreements reached and explaining their respective positions by July 22 for a pretrial scheduling conference. On July 25, the court consolidated these cases for the purpose of discovery only.

On July 28, 2016, the plaintiffs filed a voluntary dismissal given that they were pursuing the same claims as United States of America v. North Carolina and their claims were duplicative of those in that case. More information on the litigation in the consolidated case can be read here.

Ryan Berry - 06/16/2016
Rachel Czwartacky - 10/18/2018

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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
Type of Facility
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
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-0005 : North Carolinians for Privacy v. United States Department of Justice (M.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]
1:16−cv−00844−TDS−JEP (M.D. N.C.)
PA-NC-0006-9001.pdf | Detail
Date: 12/16/2016
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]
Order [ECF# 27] (2016 WL 3620752) (E.D.N.C.)
PA-NC-0006-0002.pdf | WESTLAW | Detail
Date: 06/29/2016
Source: PACER [Public Access to Court Electronic Records]
Notice of Voluntary Dismissal [ECF# 33]
PA-NC-0006-0003.pdf | Detail
Date: 07/28/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Flanagan, Louise W. (E.D.N.C.)
PA-NC-0006-0002 | PA-NC-0006-9000
Peake, Joi Elizabeth (State Trial Court, M.D. N.C.) [Magistrate]
Schroeder, Thomas D. (M.D. N.C.)
Plaintiff's Lawyers Duncan, Stuart Kyle (Louisiana)
PA-NC-0006-0001 | PA-NC-0006-0003 | PA-NC-0006-9000 | PA-NC-0006-9001
McDowell, Leah D. (Mississippi)
Potter, Robert Daniel (North Carolina)
PA-NC-0006-0001 | PA-NC-0006-0003 | PA-NC-0006-9000 | PA-NC-0006-9001
Schaerr, Gene C. (District of Columbia)
PA-NC-0006-0003 | PA-NC-0006-9000 | PA-NC-0006-9001
Defendant's Lawyers James, Michael (North Carolina)
PA-NC-0006-9000 | PA-NC-0006-9001
Nestler, Emily B. (District of Columbia)
PA-NC-0006-9000 | PA-NC-0006-9001
Other Lawyers Bowers, Karl S. (South Carolina)
PA-NC-0006-9000 | PA-NC-0006-9001
Brooks, Brennan Tyler (North Carolina)
PA-NC-0006-9000 | PA-NC-0006-9001
Gordon, Frank J. (North Carolina)
PA-NC-0006-9000 | PA-NC-0006-9001
Nimocks, David A. (Texas)
Stephens, Robert C. (North Carolina)
PA-NC-0006-9000 | PA-NC-0006-9001
Stewart, William Woodley Jr. (North Carolina)
PA-NC-0006-9000 | PA-NC-0006-9001

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