Deal Reached on N.C. Bathroom Law That Expands Transgender Protections

by | October 19, 2017

By Anne Blythe And Abbie Bennett

Gov. Roy Cooper said Wednesday there is a possible path to resolve a lawsuit that originated as a challenge to North Carolina's controversial House Bill 2.

The lawsuit had been updated after legislators passed and the Democratic governor signed a law replacing HB2, commonly referred to as the "bathroom bill."

Cooper and Cabinet secretaries who were defendants in the lawsuit joined with challengers and state Attorney General Josh Stein to submit a proposed order to the U.S. District Court in Greensboro.

"If approved by a judge, the settlement would resolve a lawsuit that challenged provisions in House Bill 142, which replaced House Bill 2," Cooper said in a news release Wednesday.

The proposed order says that under House Bill 142, "transgender people are not prevented from the use of public facilities in accordance with their gender identity."

"For too many reasons, it is not in our state's best interest to remain in drawn-out court battles that still linger because of HB2," Cooper said. "As a state, we need to work together to make North Carolina more welcoming, and I am pleased that we could come together with the other party in this case to show that we agree."

The executive branch defendants named in the lawsuit "inherited from the previous administration," according to Cooper's statement, include: Department of Administration Secretary Machelle Sanders, Department of Health and Human Services Secretary Mandy Cohen, and Department of Transportation Secretary Jim Trogdon, all of whom are included with the plaintiffs on the consent decree.

UNC supports dismissal

The University of North Carolina system, which was named as a defendant in the suit, was not part of the settlement agreement. The challengers, most of whom worked at or attended schools in the UNC system, contended that HB@ and its replacement violated Title IX, a federal law that bars gender discrimination and harassment in educational settings.

Though attorneys for UNC have asked that the system be dropped from the case, saying administrators were not enforcing either law on the campus nor did they have anything to do with their passage, challengers have argued against that.

Chris Brook, an attorney with the ACLU of North Carolina Legal Foundation, said on Wednesday, that attorneys for the challengers reached out to UNC officials and state Sen. Phil Berger and Rep. Tim Moore, the legislative leaders who intervened in the case, asking them to take part in the settlement negotiations.

"They did not join in these efforts," Brook said. "We, of course, were disappointed in joining in a consent decree which simply seeks to protect all North Carolinians, including transgender North Carolinians, from discrimination."

Efforts to reach Berger and Moore were not immediately successful on Wednesday.

Members of the UNC Board of Governors met on Oct. 9 in closed-door session with their attorneys to discuss the lawsuit.

Josh Ellis, spokesman for the UNC system, issued a statement on Wednesday. "House Bill 2 has been repealed and we believe the case should be dismissed," Ellis said. "Furthermore, we have a clear non-discrimination policy and always strive to ensure our institutions are welcoming places for everyone."

Fleeting truce?

Sen. Dan Bishop, a Mecklenburg County Republican who sponsored HB2 in opposition to a Charlotte city ordinance, was critical of the proposed settlement in a post to his Facebook page. He called it emblematic of a "truce" that he cautioned his General Assembly colleagues earlier this year "would be fleeting."

"Gov. Cooper, Attorney General Josh Stein and the ACLU propose a court 'settlement' that would guarantee access to opposite-sex restrooms, showers and changing facilities, statewide," Bishop said. "They have joined together to ask for a 'consent decree' from the federal court that would prohibit officials 'to ... block, deter or impede' anyone from using any 'public facilities' 'in accordance with ... gender identity.' It is the epitome of a collusive settlement. And an attack on the rule of law worthy of ... well, I won't say who."

For anyone still prosaic enough to have regard for rights to physiological privacy -- to be "distressed" by '[t]he thought of male genitalia in girls' locker rooms," as the Observer put it many months ago -- call the Governor's office. Same goes for the business interests who pleaded for the HB2 controversy to be quelled by good faith compromise.

The proposed settlement comes nearly six months after the administration of President Donald Trump signaled its plans to step away from the lawsuit challenging HB2 and its replacement launched by the adminstration of former President Barack Obama.

In February, President Donald Trump's administration withdrew protections for transgender students in public schools that President Barack Obama's administration had put in place.

Then on March 6, the U.S. Supreme Court refused to hear the case of Gavin Grimm, a transgender high school student from Virginia who had sued to be allowed to use the boys' bathroom at his school.

Cooper, who included his opposition to HB2 in his campaign for governor, helped broker the compromise law adopted in March.

While some lauded the compromise as a deadline approached that would have cost North Carolina the business and contracts from sports championship events. LGBT advocates were critical, calling the new law a continued attack on transgender residents who already had been targests of discrimination with the adoption of HB2.

'We will continue to fight'

House Bill 142 creates a moratorium on local nondiscrimination ordinances through Dec. 1, 2020. And it leaves regulation of bathrooms, showers and changing facilities to state lawmakers, not the universities, community colleges, local school systems and other state agencies that had been setting their own policies.

"Nothing can make up for the cruel and senseless attacks transgender people have faced in North Carolina, but I am hopeful that the court will agree to clarify the law so that we can live our lives in less fear," said Joaquín Carcaño, a transgender man who works at UNC-Chapel Hill and was one of the challengers of HB2 and its replacement.

Karen Anderson, executive director of the ACLU of North Carolina, which represented challengers, said the civil liberties advocate agreed to the proposed settlement to help alleviate what were described as "sweeping harms" to LGBT residents over the past year and a half.

"H.B. 2 and H.B. 142 remain shameful and discriminatory attacks on LGBT people that should never have been signed into law, but under this proposed consent decree North Carolina would finally affirm the right of transgender people to use facilities that match their gender," Anderson said in a statement. "The work of fully protecting LGBT people from discrimination across North Carolina is far from over, however, and we will continue fighting to advance equality and hold all North Carolina officials accountable."

But Simone Bell, southern regional director of Lambda Legal, which also represented the challengers, said that her organization will not rest in its fight for further LGBT protections.

"The state-sanctioned discrimination of H.B. 2 and H.B. 142 and the hollow attempts by North Carolina's public officials to find a solution opened a deep wound that continues to bleed into the lives of LGBT North Carolinians, but the proposed consent decree can be the start of a healing process," Bell said in a statement. "We will continue to fight for full nondiscrimination protections for all LGBT North Carolinians."

(c)2017 The News & Observer (Raleigh, N.C.)