Within days of Governor Pat McCrory, a Republican, signing into law H.B. 2, an “emergency measure” that passed with unanimous support of the Republicans in the North Carolina legislature to restrict public restroom access for transgender people and preempt localities from legislating on LGBT rights, the ACLU’s national LGBT Rights Project and its North Carolina affiliate in collaboration with the Atlanta office of Lambda Legal filed a lawsuit in the U.S. District Court for the Middle District of North Carolina, attacking the constitutionality of the measure. %Caracano v. McCrory%, No. 1:16-cv-236 (filed March 28, 2016). The case was assigned to District Judge Thomas D. Schroeder. North Carolina’s attorney general, Roy Cooper III, one of the named defendants in his official capacity, soon announced that he agreed with the plaintiffs that H.B. 2 was unconstitutional and so his office would not defend it. Cooper is planning to run for governor against McCrory.
Social and political fallout responding to the new statute was swift. Governors from three states and mayors from several major cities had banned official travel by their employees to North Carolina within a week after the bill was signed, scores of corporate executives, including many from the state’s largest employers, signed letters to the governor deploring the measure, and talk had begun about professional sports leagues possibly shifting championship games out of the state. Particular attention was focused on a large furniture trade fair held annually in North Carolina, organized by a gay couple, with the organizers reporting that many of the usual participants had indicated that they would not come this year due to passage of the law. Efforts to put pressure on the state legislature through a tourism and business boycott were soon well under way. Governor McCrory dug in his heels, claiming that the law was not “discriminatory” and was intended to protect the private of public restroom users, charging that Attorney General Cooper’s announced refusal to defend the measure was a violation of his oath of office, a point that Cooper hotly disputed. McCrory’s position was quickly undermined as Governor Nathan Deal, a fellow Republican, vetoed an anti-gay “religious freedom” measure in Georgia just days later, to be followed shortly by Virginia Governor Terry McAuliffe.
Passage of H.B. 2 was provoked by a majority vote of the Charlotte City Council to add sexual orientation and gender identity to its local civil rights ordinance effective April 1, over protests by opponents that this would allow men pretending to be women to invade women’s restroom facilities, thus violating the privacy of their female users and posing a danger of sexual assaults. The claim was bizarre on its face, since scores of municipalities and counties, and many states, have banned gender identity discrimination in places of public accommodation, some for a decade or more, without any such incidents being reported. Furthermore, somebody identified as male at birth but asserting a female gender identity would not likely attempt to use a woman’s restroom or locker room facility if they were not expressing their gender identity as female through dress and grooming and taking female hormones through a prescription written by a doctor who has diagnosed gender dysphoria, and such is the experience under such laws in other jurisdictions. But Governor McCrory, running for re-election and seeking to energize his conservative (and presumably transphobic) base, had warned even before the Council voted that passage of the measure in the city where he had previously served as mayor would require a response from the state government. Although McCrory did not call for the special session, which was initiated by Republican leaders in both houses, he signed the resulting bill with alacrity, probably setting speed records for a controversial measure being introduced, passing both houses, and being signed into law in a single legislative day. Some state legislators protested that they did not even receive the text of the bill prior to the day’s floor debates.
Although the “provocation” focused on restrooms, the legislative response ran far beyond a simple overturning of the gender identity provision of the local ordinance as it pertains to public accommodations or more narrowly to specific kinds of facilities. Instead, the legislature affirmatively enacted a %requirement% that the public schools and other government facilities throughout the state restrict access to any “multiple occupancy bathroom or changing facility” by designating each such facility as being for the exclusive use of males or females and providing that only persons identified on their birth certificates as male could use male-designated facilities and analogously for women. Since North Carolina requires proof of sex reassignment surgery before issuing new birth certificates to applicants seeking a change to reflect their gender identity, and many transgender people don’t undergo complete reassignment surgery for a variety of reasons, including the expense of a procedure not covered by their health insurance, many transgender people would be left in effect without ready access to appropriate restroom facilities. Use of facilities consistent with their birth certificates could subject them to violent reactions, especially noting the gun culture of southern states like North Carolina. (Imagine the danger to a transgender man coming into a female-designated restroom occupied by women with pistols!) The legislature apparently gave no thought to how its restroom restrictions would be enforced in practice, an issue not addressed in the statute. Indeed, the statute directs its mandate to “local boards of education” and government “agencies” to “establish” single-sex facilities and restrict their use, but does not explicitly impose penalties for failure to do so, and says nothing specifically about penalties, if any, imposed on persons apprehended using the “wrong” restrooms. We are waiting for somebody to confront Gov. McCrory in a men’s restroom in the state capitol to demand that he prove his “biological sex,” presumably by exposing his penis to inspection. But we digress. . . .
The legislature went even further. Not contenting itself with addressing the “bathroom” issue, it also passed a provision preempting local governments from forbidding discrimination in employment and public accommodations by declaring such issues as properly reserved to statewide resolution. Just to drive the point home and to avoid arguments about broadly defining bans on sex discrimination, the preempting statute bans discrimination on the basis of “biological sex,” which is defined according to the individual’s sex as designated on their birth certificate. The measure also eschews creating any private right of action for discrimination in employment or public accommodations, instead limiting enforcement to complaints to the Human Relations Commission, which is authorized to “investigate and conciliate” but not to legislate, the goal being to resolve all complaints from “amicable resolution.” This effectively preempted and wiped out all local civil rights laws, and because of the limited list of categories covered in H.B. 2, incidentally eliminated some local protections for veterans. While they were at it, the legislators threw into the bill a totally unrelated prohibition on local governments legislating on public contracting, wages and hours, child labor, and other subjects dealt with by the state’s wage and hours law, including prohibiting localities from establishing a minimum wage higher than the state’s rather low minimum. The thread tying these provisions together was a purported bid for “statewide consistency” in employment regulation, contracting, and anti-discrimination policies, the “theory” being that allowing localities to legislate would make life too difficult for businesses and confusing for everybody else.
The lawsuit was brought in the name of two state university employees, Joaquin Carcano (a transgender man at UNC Chapel Hill) and Angela Gilmore (a lesbian at Northern Carolina Central University Law School) and a current student, Payton Grey McGarry (a transgender man at UNC Greensboro), as well as the ACLU of North Carolina (a legal membership organization) and Equality North Carolina (a political membership organization). The named defendants are Governor Patrick McCrory, Attorney General Roy Cooper III, the University of North Carolina and its Board of Governors, and the UNC Board’s chair, W. Louis Bissette, Jr.
The complaint proceeds along several lines, constitutional and statutory. The constitutional claim was that H.B. 2 violates the 14th Amendment’s Due Process and Equal Protection Clauses, by imposing harms on transgender and lesbian/gay/bisexual residents of the state without sufficient justification to meet constitutional requirements. The complaint asserts that heightened scrutiny judicial review applies to these sorts of discrimination, a point not yet expressly embraced by the Supreme Court but starting to make its way in the lower federal courts. (For example, the 11th Circuit, in %Glenn v. Brumby%, 663 F.3d 1312 (2011), found that gender identity discrimination by a public employer was sex discrimination subject to heightened scrutiny. The Obama Administration argued in the %Windsor% case that sexual orientation discrimination was subject to heightened scrutiny, a point embraced by the 2nd Circuit in that litigation.) The Due Process Clause claim includes a privacy claim, arguing that the bathroom restrictions will require transgender people to “out” themselves, thus exposing themselves to danger, and that in light of the state’s demanding criteria for issuing new birth certificates, in effect dictating to transgender people that they must undergo surgical procedures to attain equal access to appropriate public facilities for their gender, another imposition upon individual choice and autonomy. The complaint also asserts violations of Title IX of the federal Education Act Amendments, which forbid sex discrimination by educational institutions that get federal money. This relies on recent decisions by the U.S. Department of Education that this provision requires educational institutions to allow transgender people to access restroom and locker room facilities consistent with their gender identity.
The complaint also attacks the preemption of local laws protective of LGBT rights, summoning an argument based on the Supreme Court’s 1996 decision in %Romer v. Evans%, which struck down a Colorado constitutional amendment prohibiting the state or its political subdivisions from outlawing anti-gay discrimination. Unlike the Colorado amendment, H.B. 2 does not single out LGBT people for exclusion from protection on its face, excluding them instead by %not% mentioning them sexual orientation or gender identity as prohibited grounds of discrimination and preempting local governments from legislating on discrimination. But the rationale of %Romer% seems to apply, in that the measure was adopted for the proclaimed purpose of excluding LGBT people from the protections afforded to other groups that suffer discrimination, with no rational basis articulated other than a desire to exclude. Another argument that seems relevant here would be derived from the U.S. Supreme Court’s ruling in %U.S. v. Windsor% striking down Section 3 of the Defense of Marriage Act. The government sought to defend the refusal to recognize same-sex marriages contracted under state law by advancing the need for a national unified definition of marriage for purposes of federal rights and programs, similar to North Carolina’s argument for “statewide consistency” in anti-discrimination law. The Supreme Court did not even find that justification significant enough to dignify it with discussion.
Since Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment, applies to state and local government workplaces, the restroom provisions likely violate Title VII consistent with the views of the EEOC, as expressed in %Lusardi v. McHugh%, Appeal No. 0120133395, 2015 WL 1607756 (EEOC, April 1, 2015, holding that the Department of the Army violated Title VII by refusing by restricting restroom access of a transgender civilian employee. Title VII claims must be filed initially with the EEOC or designated state civil rights agencies, subject to an “exhaustion of administrative remedies requirement,” before they can be brought in federal court, so no Title VII claim was asserted in this challenge to H.B. 2. However, it is possible that transgender state and local government employees will file such complaints, generating additional litigation as the %Carcano% case works its way through the federal courts. EEOC is busy litigating, directly and through amicus briefs in private litigation, to establish its position on the interpretation of “sex” under Title VII in non-federal employment cases in the courts, and a private “bathroom” case under Title IX is pending before the 4th Circuit Court of Appeals, %G.G. v. Gloucester County School Board%, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va. September 17, 2015). (Federal courts generally consider Title VII sex discrimination and Title IX cases under the same doctrinal rubric and freely refer to court decisions under both statutes.) Indeed, the %G.G.% appeal has been argued before a circuit panel and a ruling is imminent. Such a ruling would be direct binding precedent on the district court in the case challenging H.B. 2.
The legal team representing plaintiffs includes Christopher A. Brook for the North Carolina Legal Foundation of the ACLU, Elizabeth O. Gill and Chase B. Strangio of the ACLU’s national LGBT Rights Project, and Tara L. Borelli, Peter C. Renn, and Kyle A. Palazzolo of Lambda Legal’s Atlanta office.
[Government officials from other states taking official action to ban state-funded employee trips to North Carolina included New York Governor Andrew Cuomo (Executive Order No. 155), New York City Mayor Bill DeBlasio, Vermont Governor Peter Shumlin, Washington State Governor Jay Inslee, Seattle Mayor Edward Murray (Executive Order 2016-03), San Francisco Mayor Ed Lee, and Chicago Mayor Rahm Emanuel.]