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Posts Tagged ‘US District Court MIddle District of North Carolina’

District Judge Enjoins Enforcement of H.B. 2 against Transgender Plaintiffs by the University of North Carolina

Posted on: August 29th, 2016 by Art Leonard No Comments

U.S. District Judge Thomas D. Schroeder granted a motion for preliminary injunction brought by attorneys for three transgender plaintiffs asserting a Title IX challenge to North Carolina’s bathroom bill, H.B.2. Carcano v. McCrory, 2016 U.S. Dist. LEXIS 114605 (M.D. N.C., August 26, 2016).  Finding that the plaintiffs were likely to succeed on the merits of their Title IX challenge in his district court because he was bound by the 4th Circuit Court of Appeals’ ruling in G.G. v. Gloucester County School Board, 822 F.3d 709 (2016), to defer to the Department of Education’s interpretation of Title IX as banning gender identity discrimination and requiring restroom access consistent with gender identity by transgender students, Judge Schroeder concluded that satisfaction of the first test for preliminary injunctive relief, likelihood of success on the merits under 4th Circuit case law, was easily satisfied.  Judge Schroeder noted that the Supreme Court has stayed a preliminary injunction that was issued in the G.G. case while the school district petitions the Supreme Court to review the 4th Circuit’s ruling, but observed that the stay did not vacate the 4th Circuit’s decision, so the requirement for deferral remains the “law of the circuit,” binding on the district court.

Lambda Legal announced on August 29 that it would attempt to get the court to broaden the injunction so as to protect all transgender people in North Carolina from enforcement of the bathroom provision of H.B. 2.

This case arose after the North Carolina legislature held a special session on March 23, 2016, for the specific purpose of enacting legislation to prevent portions of a recently-passed Charlotte civil rights ordinance from going into effect on April 1. Most of the legislative comment was directed to the city’s ban on gender identity discrimination in places of public accommodation, which – according to some interpretations of the ordinance – would require businesses and state agencies to allow persons to use whichever restroom or locker room facilities they desired, regardless of their “biological sex.” (This was a distortion of the ordinance which, properly construed, would require public accommodations offering restroom facilities to make them available to transgender individuals without discrimination.)  Proponents of the “emergency” bill, stressing their concern to protection the privacy and safety of women and children from male predators who might declare themselves female in order to get access to female-designated facilities for nefarious purposes, secured passage of Section 1 of H.B. 2, the “bathroom bill” provision, which states that any restroom or similar single-sex designated facility operated by the state government (including subsidiary establishments such as public schools and the state university campuses) must designate multiple-user facilities as male or female and limit access according to the sex indicated on individuals’ birth certificates, labeled “biological sex” in the statute.

Another provision of the law preempted local civil rights legislation on categories not covered by state law, and prohibited lawsuits to enforce the state’s civil rights law. This would effectively supersede local ordinances, such as the recently-enacted Charlotte ordinance, wiping out its ban on sexual orientation and gender identity discrimination as well as several other categories covered by Charlotte but not by the rather narrow state civil rights law, such as veteran status. This had the effect of lifting Charlotte’s mandate that places of public accommodation not discriminate in their restroom facilities based on gender identity or sexual orientation, and limited the ordinance’s sex discrimination prohibition to distinctions based on “biological sex.”  Although private sector facilities could, if their owners desired, adopt policies accommodating transgender individuals, they would not have to do so.

A furious round of litigation ensued, with cases brought in two of the three North Carolina federal districts by a variety of plaintiffs, including the three individuals in Carcano (represented by the ACLU of North Carolina and Lambda Legal), who are all transgender people covered by Title IX by virtue of being students or employees of the University of North Carolina. Equality North Carolina, a statewide lobbying group, is co-plaintiff in the case.  Governor McCrory and state Republican legislative leaders sued the federal government, seeking declaratory judgments that H.B. 2 did not violate federal sex discrimination laws, while the Justice Department sued the state officials, seeking a declaration that H.B. 2 did violate federal sex discrimination laws and the Constitution.  A religiously-oriented firm, Alliance Defending Freedom, sued on behalf of parents and students challenging the validity of the Justice Department’s adoption of its Guidelines on Title IX compliance.  There has been some consolidation of the lawsuits, which are at various stages of pretrial maneuvering, discovery and motion practice.  Judge Schroeder’s ruling responded solely to a motion for preliminary relief on behalf of the three plaintiffs in the case against UNC, Governor McCrory and other state officials, including Attorney General Roy Cooper, the Democratic candidate for governor against McCrory.  Cooper is refusing to defend H.B. 2, requiring McCrory to resort to other defense counsel.

The University of North Carolina’s reaction to the passage of H.B. 2 has been curious to watch. At first University President Margaret Spellings announced that UNC was bound by the state law and would comply with it.  Then, after a storm of criticism and the filing of lawsuits, Spellings pointed out that H.B. 2 had no enforcement provisions and that the University would not actively enforce it.  Indeed, in the context of this preliminary injunction motion, the state argued that there was no need for an injunction because the University was not interfering with the three plaintiffs’ use of restroom facilities consistent with their gender identity.  Thus, they argued, there was no harm to the plaintiffs and no reason to issue an order compelling the University not to enforce the bathroom provisions.  Judge Schroeder rejected this argument, pointing out that “UNC’s pronouncements are sufficient to establish a justiciable case or controversy.  The university has repeatedly indicated that it will – indeed, it must – comply with state law.  Although UNC has not changed the words and symbols on its sex-segregated facilities, the meaning of those words and symbols has changed as a result of [the bathroom provisions], and UNC has no legal authority to tell its students or employees otherwise.” In light of those provisions, he wrote, “the sex-segregated signs deny permission to those whose birth certificates fail to identify them as a match.  UNC can avoid this result only by either (1) openly defying the law, which it has no legal authority to do, or (2) ordering that all bathrooms, showers, and other similar facilities on its campuses be designated as single occupancy, gender-neutral facilities.  Understandably, UNC has chosen to do neither.”  Since UNC has not expressly given transgender students and staff permission to use gender-identity-consistent facilities and has acknowledged that H.B. 2 is “the law of the state,” there is a live legal controversy and a basis to rule on the preliminary injunction motion.

Perhaps the key factual finding of Judge Schroeder’s very lengthy written opinion was that the state had failed to show that allowing transgender people to use restroom facilities consistent with their gender identity posed any significant risk of harm to other users of those facilities, and he also found little support for the state’s privacy claims, although he did not dispute the sincerity with which those claims were put forward by legislators. Indeed, as described by the judge, the state has been rather lax in providing any factual basis for its safety and privacy claims in litigating on this motion, and had even failed until rather late in the process to provide a transcript of the legislative proceedings, leaving the court pretty much in the dark as to the articulated purposes for passing the bathroom provision. According to the judge, the only factual submission by the state consisted of some newspaper clippings about men in other states who had recently intruded into women’s restrooms in order to make a political point. This, of course, had nothing to do with transgender people or North Carolina. The judge also pointed out that North Carolina has long had criminal laws in place that would protect the safety and privacy interests of people using public restroom facilities.  In reality, these “justifications” showed that the bathroom provision was unnecessary.  For purposes of balancing the interests of the parties in deciding whether a preliminary injunction should be issued, Schroeder concluded that the harm to plaintiffs in deterring them from using appropriate restroom facilities was greater than any harm to defendants in granting the requested injunction, and that the public interest weighed in favor of allowing these three plaintiffs to use restroom facilities consistent with their gender identities without any fear of prosecution for trespassing.  (Since the bathroom provision has no explicit enforcement mechanism, Judge Schroeder found, its limited effect is to back up the criminal trespassing law by, for example, designating a “men’s room” as being off-limits to a transgender man.)

However, Judge Schroeder, commenting that the constitutional equal protection and due process claims asserted by the plaintiffs were less well developed in the motion papers before him, refused to premise his preliminary injunction on a finding that the plaintiffs were likely to succeed in proving that H.B. 2’s bathroom provision violates the 14th Amendment.  Accepting for purposes of analysis that the plaintiffs were asserting a sex discrimination claim that invoked “heightened scrutiny” of the state’s justification for the bathroom provision, he concluded that it was not clear that the state could not meet that test, referring to 4th Circuit precedents on individual privacy and the state’s interest in protecting the individual privacy of users of public restroom facilities.  He reached a similar conclusion regarding the due process arguments, putting off any ruling on them to the fall when he will hold a hearing on the merits.  There will be pre-trial motions to decide in the other cases that were consolidated with this one for purposes of judicial efficiency, so this ruling was not the last word on preliminary relief or on the constitutional claims.

Judge Schroeder explained that his injunction directly protects only the three plaintiffs and not all transgender students and staff at UNC. “The Title IX claim currently before the court is brought by the individual transgender Plaintiffs on their own behalf,” he wrote; “the current complaint asserts no claim for class relief or any Title IX claim by ACLU-NC on behalf of its members.  Consequently, the relief granted now is as to the individual transgender Plaintiffs.”  Despite that technicality, of course, this preliminary injunction puts the University on notice that any action to exclude transgender students or staff from restroom facilities consistent with their gender identity has already been determined by the district court to be a likely violation of Title IX, which could deter enforcement more broadly.  Given the University’s position in arguing this motion that it was not undertaking enforcement activity under the bathroom bill anyway, there was no immediate need for a broader preliminary injunction in any event.

Judge Schroeder was appointed to the court in 2007 by President George W. Bush.

Federal Court Agrees to Let VAWA Funding in North Carolina to Continue During Pendency of H.B. 2 Lawsuit

Posted on: July 6th, 2016 by Art Leonard No Comments

When the Justice Department filed suit against North Carolina for a declaration that H.B.2’s bathroom provision violates the Violence Against Women Act (VAWA), it put into play a provision of that statute, 42 U.S.C. sec. 13925(b)(13)(c), which provides that upon the filing of a civil action “alleging a pattern or practice of discriminatory conduct on the basis of sex in any program or activity of a State government or unit of local government which receives funds made available under [VAWA], and the conduct allegedly violates the provisions of [VAWA] and neither party within forty-five days after such filing has been granted such preliminary relief with regard to the suspension or payment of funds as may be otherwise available by law, the Office of Justice Programs shall cause to have suspended further payment of any funds under this chapter to that specific program or activity alleged by the Attorney General to be in violation of the provisions of [VAWA] until such time as the court orders resumption of payment.” In other words, federal funding for a variety of rape prevention and domestic violence programs in North Carolina that depend on federal funds under VAWA would have to be suspended 45 days after May 10.

For a while nobody was really paying attention to this, but suddenly somebody woke up to the reality that before the end of June the federal money would stop flowing to these programs unless the court issued a preliminary injunction to keep the money flowing. United States v. State of North Carolina, 2016 WL 3561726 (M.D.N.C., June 23, 2016).  The State and the Justice Department quickly reached an agreement to ask the federal court to issue such a preliminary injunction, which District Judge Thomas Schroeder did on June 23.

However, Judge Schroeder agonized through a rather lengthy opinion trying to explain how such an injunction could be issued when the state failed to show that it was likely to prevail on the merits of the underlying issue: whether the bathroom provisions of H.B. 2 violate the VAWA, as alleged by the Justice Department. Alone among the statutes cited by DOJ in its complaint, VAWA actually explicitly defines its ban on discrimination “because of sex” to include discrimination because of gender identity; on top of that, of course, the 4th Circuit has already ruled in G.G. v. Gloucester County School Board, 2016 WL 1567467 (April 19, 2016), rehearing en banc denied (June 1), that the ban on sex discrimination in Title IX (and by analogy Title VII), also cited in the complaint, includes a ban on gender identity discrimination.

The state is arguing, without much credibility, that the bathroom provision does not discriminate against transgender people, “merely” requiring them to use single-gender facilities or facilities consistent with their biological sex as specified on their birth certificate when they need a bathroom. In a summary judgment motion subsequently filed on July 5, DOJ blasted that contention out of the water, but, of course, that motion hadn’t been filed yet when Judge Schroeder had to decide before a statutory deadline for suspending funding that would hit on June 23.

Ultimately, he concluded that even though preliminary injunctive relief normally depends on a strong showing that the defendant is likely to prevail on the merits, there is no controlling 4th Circuit precedent that would prevent him from issuing the jointly-requested injunction in light of the practical consequences of cutting off federal funding for these important programs for the duration of the litigation. While pointing out that lack of a showing of likelihood of success “is normally fatal to any request for a preliminary injunction,” this was not the usual case.  “With the consent of all parties, however,” he wrote, “courts sometimes enter preliminary injunctions without any findings regarding the likelihood of success on the merits. . .  The Fourth Circuit has acknowledged this practice without comment.”

In stating his decision to grant the injunction, he wrote: “The court does so particularly mindful of how the entrenched positions of the parties would otherwise likely inflict substantial harm on innocent third parties if VAWA funding were to be suspended. As the parties acknowledge, the continued operation of rape crisis centers and the other VAWA-funded programs unquestionably serves the public interest.  The court is also cognizant, however, that if the allegations of the complaint are correct, maintenance of the status quo will continue to inflict harm on transgender individuals under enforcement of the law.”  He cautioned that by agreeing to allow funding for these programs to continue, neither party was making any representation “as to any other party’s likelihood of success on the merits.  As a result, the entry of this preliminary injunction shall not prejudice the parties’ positions in this case or further findings by the court.”

Presumably, if Judge Schroeder were to grant the DOJ’s motion for preliminary injunction that was filed on July 5, the State would have to cease enforcing H.B.2’s bathroom provision while the litigation continued, and thus the flow of federal money would no longer be endangered. Since the %G.G.% ruling by the 4th Circuit intimated, if not actually holding, that schools receiving federal funds from the Education Department might have to let transgender students access bathrooms consistent with their gender identity, chances do not look good for the State to succeed in defeating DOJ’s motion for preliminary injunction.