UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF NORTH CAROLINA; PATRICK )

MCCRORY, in his official capacity as

)

Governor of North Carolina; NORTH

)

CAROLINA DEPARTMENT OF PUBLIC )

SAFETY; UNIVERSITY OF NORTH

)

CAROLINA; and BOARD OF GOVERNORS )

OF THE UNIVERSITY OF NORTH

)

CAROLINA,

)

)

Defendants.

)

Case No. _____________

COMPLAINT

PRELIMINARY STATEMENT

1. The United States files this complaint challenging a provision of North Carolina

law requiring public agencies to deny transgender persons access to multiple-occupancy

bathrooms and changing facilities consistent with their gender identity.

2. As set forth below, Defendants’ compliance with and implementation of Part I of

North Carolina Session Law 2016-3, House Bill 2 (“H.B. 2”), which was enacted and became

effective on March 23, 2016, constitutes a pattern or practice of employment discrimination on

the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e, et seq. (“Title VII”); discrimination on the basis of sex in an education program

receiving federal funds in violation of Title IX of the Education Amendments of 1972, 20 U.S.C.

§ 1681, et seq. (“Title IX”), and its implementing regulations, 28 C.F.R. Part 54 (2000), 34

C.F.R. Part 106 (2010); and discrimination on the basis of sex and gender identity in programs

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receiving federal funds in violation of the Violence Against Women Reauthorization Act of 2013 (“VAWA”), 42 U.S.C. § 13925(b)(13).
JURISDICTION AND VENUE 3. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 2000e-6 and 28 U.S.C. §§ 1331, 1343(a), and 1345. 4. Venue is proper pursuant to 28 U.S.C. § 1391(b) because Defendants are located within the Middle District of North Carolina and because a substantial part of the acts or omissions giving rise to this complaint arose from events occurring within this judicial district. 5. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure; 28 U.S.C. §§ 2201 and 2202; 42 U.S.C. §§ 2000e-6(a) and (b); 20 U.S.C. § 1682; and 42 U.S.C. §§ 13925(b)(13)(C) and 3789d(c)(3).
DEFENDANTS 6. Defendant State of North Carolina is a person within the meaning of 42 U.S.C. § 2000e(a) and an employer within the meaning of 42 U.S.C. § 2000e(b). 7. Defendant Patrick McCrory is the Governor of North Carolina. Pursuant to Article III, Section 1 of the North Carolina Constitution, “the executive power of the State” is vested in Defendant McCrory in his capacity as Governor. Article III, Section 5(4) also provides that it is the duty of Defendant McCrory in his capacity as Governor to “take care that the laws be faithfully executed.” Defendant McCrory is a person within the meaning of 42 U.S.C. § 2000e(a). 8. Defendant North Carolina Department of Public Safety is an agency of the State of North Carolina responsible for public safety, corrections and emergency management. It is a
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person within the meaning of 42 U.S.C. § 2000e(a) and an employer within the meaning of 42 U.S.C. § 2000e(b). It is currently and, at all times relevant to the Complaint, has been a recipient of federal funds from the Department of Justice’s Office on Violence Against Women, with open grants dated after the reauthorization of VAWA on March 19, 2013. As a condition of receiving federal funds, Defendant North Carolina Department of Public Safety signed contract assurances agreeing that it will not discriminate in violation of federal law.
9. Defendant University of North Carolina is a public, multi-campus university that is organized under, and exists pursuant to, the laws of the State of North Carolina. It is a person within the meaning of 42 U.S.C. § 2000e(a) and an employer within the meaning of 42 U.S.C. § 2000e(b). It is currently and, at all times relevant to the Complaint, has been a recipient of federal funds from the United States Department of Justice, including the Office on Violence Against Women, with open grants dated after the reauthorization of VAWA on March 19, 2013. As a condition of receiving federal funds, Defendant University of North Carolina signed contract assurances agreeing that it will not discriminate in violation of federal law.
10. Defendant Board of Governors of the University of North Carolina is the corporate body charged with the general control, supervision, and governance of the University of North Carolina and is capable under North Carolina law of suing and being sued in any court.
FACTUAL ALLEGATIONS Enactment of H.B. 2
11. On March 23, 2016, the North Carolina legislature convened a special session for the purpose of passing H.B. 2.
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12. H.B. 2 mandates, inter alia, that all “[p]ublic agencies . . . require multiple occupancy bathrooms or changing facilities . . . be designated for and only used by individuals based on their biological sex.” H.B. 2 defines “biological sex” as “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” H.B. 2 further defines “public agencies” to include, among other entities, the state executive, judicial and legislative branches, including the University of North Carolina system.
13. H.B. 2 was enacted in direct response to Ordinance 7056 passed by the City Council in Charlotte, North Carolina (the “Charlotte Ordinance”), which permitted transgender individuals to use facilities corresponding to their gender identity by prohibiting discrimination based on “gender identity” in places of public accommodation.
14. Governor McCrory and North Carolina legislators made explicit public statements indicating that they proposed, passed, and signed H.B. 2 to overturn the Charlotte Ordinance and to ensure transgender individuals would not be permitted to access bathrooms and other facilities consistent with their gender identity in schools and other public agencies.
15. Prior to the passage of the Charlotte Ordinance in February 2016, Governor McCrory told members of the Charlotte City Council that the Ordinance could “create major public safety issues by putting citizens in possible danger from deviant actions by individuals taking improper advantage of a bad policy.” Governor McCrory went on to explain that the “action of allowing a person with male anatomy, for example, to use a female restroom or locker room will most likely cause immediate State legislative intervention which I would support as governor.”
16. When State Representative Dan Bishop introduced H.B. 2, he stated that “[a] small group of far-out progressives should not presume to decide for us all that a cross-dresser’s
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liberty to express his gender nonconformity trumps the right of women and girls to peace of mind.”
17. The bill passed both houses on March 23, 2016—the same day it was introduced. Governor McCrory signed the bill that night. H.B. 2 took effect immediately.
18. Following the conclusion of the special session, Senate President Phil Berger stated on his website, “[t]he North Carolina Senate voted unanimously Wednesday [March 23, 2016] to stop a radical and illegal Charlotte City Council ordinance allowing men into public bathrooms and locker rooms with young girls and women.” Senator Berger characterized the Charlotte Ordinance as “dangerous” and claimed that it “created a loophole that any man with nefarious motives could use to prey on women and young children.”
19. Lieutenant Governor Dan Forest stated that the Charlotte Ordinance “would have given pedophiles, sex offenders, and perverts free rein to watch women, boys, and girls undress and use the bathroom.”
Defendants’ Compliance with and Implementation of H.B. 2 and the United States’ Response
20. On April 5, 2016, following the enactment of H.B. 2, Defendant University of North Carolina’s President, Margaret Spellings, issued a Memorandum to all Chancellors in the University of North Carolina system, titled “Guidance – Compliance with the Public Facilities Privacy & Security Act.” The Memorandum directed Chancellors that “University institutions must require every multiple-occupancy bathroom and changing facility to be designated for and used only by persons based on their biological sex.”
21. As a federal funding agency, when the Department of Justice has reason to question a funding recipient’s compliance with Title IX, it gives notice of non-compliance and attempts to secure the recipient’s compliance through voluntary means.
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22. On April 8, 2016, the United States sent a letter to President Spellings seeking information to determine whether the University was complying with federal law.
23. In a response dated April 13, 2016, President Spellings affirmed that “the University is specifically covered by H.B. 2 and is required as a public agency to comply with its applicable portions, including the provisions related to multiple-occupancy bathrooms and changing facilities.”
24. On April 12, 2016, Governor McCrory issued Executive Order 93, implementing H.B. 2 and affirming that “every multiple occupancy restroom, locker room or shower facility located in a cabinet agency must be designated for and only used by persons based on their biological sex.”
25. Access to bathrooms and changing facilities on the University of North Carolina campus are covered by the non-discrimination mandates of Title IX and VAWA.
26. Access to bathrooms and changing facilities operated by Defendant North Carolina Department of Public Safety and its sub-recipients are covered by the nondiscrimination mandate of VAWA.
27. Access to bathrooms and changing facilities in the workplace at public agencies in the State of North Carolina is a term, condition and privilege of employment and, therefore, is covered by the non-discrimination mandate of Title VII.
28. In letters dated May 4, 2016, the United States notified all Defendants, including the University of North Carolina, that the United States had determined they were not in compliance with Title VII, Title IX, and/or VAWA, based on their compliance with and implementation of provisions of H.B. 2 that are irreconcilable with federal law. The United States requested that Defendants immediately agree not to comply with those provisions of H.B.
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2, ensure that transgender persons were entitled to use multiple-occupancy bathrooms and changing facilities consistent with their gender identity as required by federal law, and retract any statements to the contrary. The United States advised Defendants that it would take enforcement action under the above statutes if such compliance with federal law was not demonstrated.
29. As of the filing of this Complaint, no Defendant has taken steps to achieve that compliance.
Gender Identity and Its Relationship to Sex 30. Individuals are typically assigned a sex on their birth certificate solely on the basis of the appearance of the external genitalia at birth. Additional aspects of sex (for example, chromosomal makeup) typically are not assessed and considered at the time of birth, except in cases of infants born with ambiguous genitalia. 31. An individual’s “sex” consists of multiple factors, which may not always be in alignment. Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female. 32. For individuals who have aspects of their sex that are not in alignment, the person’s gender identity is the primary factor in terms of establishing that person’s sex. External genitalia are, therefore, but one component of sex and not always determinative of a person’s sex. 33. Although there is not yet one definitive explanation for what determines gender identity, biological factors, most notably sexual differentiation in the brain, have a role in gender identity development.
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34. Transgender individuals are individuals who have a gender identity that does not match the sex they were assigned at birth. A transgender man’s sex is male and a transgender woman’s sex is female.
35. A transgender individual may begin to assert a gender identity inconsistent with their sex assigned at birth at any time from early childhood through adulthood. The decision by transgender individuals to assert their gender identity publicly is a deeply personal one that is made by the individual, often in consultation with family, medical and health care providers, and others.
36. Gender identity is innate and external efforts to change a person’s gender identity can be harmful to a person’s health and well-being.
37. Gender identity and transgender status are inextricably linked to one’s sex and are sex-related characteristics.
38. Most states authorize changing the sex marker on one’s birth certificate, but the requirements for doing so vary and are often onerous. Specifically, many states require surgical procedures. At least one state does not allow persons to change the sex marker on their birth certificates.
39. Individuals born in North Carolina must have proof of certain surgeries, such as “sex reassignment surgery,” in order to change the sex marker on their birth certificates. N.C. Gen. Stat. § 130A-118(b)(4).
40. Surgery related to gender transitioning is generally unavailable to children under age 18.
41. In addition, the great majority of transgender individuals do not have surgery as part of their gender transition. Determinations about such surgery are decisions about medical
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care made by physicians and patients on an individual basis. For some, health-related conditions or other medical criteria counsel against invasive surgery. For others, the high cost of surgical procedures, which are often excluded from health insurance coverage, present an insurmountable barrier.
42. Standards of medical care for surgery related to gender transitioning generally advise that transgender individuals present consistent with their gender identity on a day-to-day basis across all settings of life, including in bathrooms and changing facilities at school and at work, for a significant time period prior to undergoing surgery.
Impact of H.B. 2 on Transgender Individuals in North Carolina 43. H.B. 2 requires public agencies to follow a facially discriminatory policy of treating transgender individuals, whose gender identity may not match their birth certificates, differently from similarly situated non-transgender individuals. 44. Because of Defendants’ compliance with and implementation of H.B. 2, nontransgender employees of Defendants and of other public agencies in North Carolina may access bathrooms and changing facilities that are consistent with their gender identity in their places of work, while transgender employees may not access bathrooms and changing facilities that are consistent with their gender identity. 45. Defendants’ compliance with and implementation of H.B. 2 stigmatizes and singles out transgender employees, results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect. 46. Upon information and belief, transgender employees of Defendants and other public agencies in North Carolina have suffered and continue to suffer injury, including, without
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limitation, emotional harm, mental anguish, distress, humiliation, and indignity as a direct and proximate result of Defendants’ compliance with and implementation of H.B. 2.
47. Because of the compliance with and implementation of H.B. 2 by Defendants University of North Carolina and Board of Governors of the University of North Carolina, individuals who are not transgender may access campus bathrooms and changing facilities that are consistent with their gender identity, while individuals who are transgender may not access campus bathrooms and changing facilities that are consistent with their gender identity.
48. The compliance with and implementation of H.B. 2 by Defendants University of North Carolina and Board of Governors of the University of North Carolina stigmatizes and singles out transgender individuals, results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect.
49. Upon information and belief, transgender individuals seeking access to the University of North Carolina campus have suffered and continue to suffer injury, including, without limitation, emotional harm, mental anguish, distress, humiliation, and indignity as a direct and proximate result of compliance with and implementation of H.B. 2.
50. Because of the compliance with and implementation of H.B. 2 by Defendants North Carolina Department of Public Safety, University of North Carolina, and Board of Governors of the University of North Carolina, individuals who are not transgender may access bathrooms and changing facilities that are consistent with their gender identity in covered facilities, while individuals who are transgender may not access bathrooms and changing facilities that are consistent with their gender identity.
51. The compliance with and implementation of H.B. 2 by Defendants North Carolina Department of Public Safety, University of North Carolina, and Board of Governors of the
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University of North Carolina stigmatizes and singles out transgender individuals seeking access to covered facilities, results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect.
52. Upon information and belief, transgender individuals seeking access to covered facilities have suffered and continue to suffer injury, including, without limitation, emotional harm, mental anguish, distress, humiliation, and indignity as a direct and proximate result of compliance with and implementation of H.B. 2.
CLAIMS FOR RELIEF COUNT I
Violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) 42 U.S.C. § 2000e, et seq. (Against All Defendants)
53. As alleged in this Complaint, Defendants State of North Carolina, North Carolina Department of Public Safety, University of North Carolina, and Board of Governors of the University of North Carolina are engaged in, and continue to engage in, a pattern or practice of sex discrimination in the terms, conditions, and privileges of employment against their transgender employees in violation Title VII.
54. As alleged in this Complaint, Defendants State of North Carolina and Governor McCrory have engaged in a pattern or practice of resistance to the full enjoyment of employment rights under Title VII by implementing and requiring compliance with policies and practices that require public agencies to discriminate against their transgender employees based on sex in the terms, conditions, and privileges of employment in violation of Title VII.
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COUNT II Violation of Title IX of the Education Act Amendments of 1972 (“Title IX”)
20 U.S.C. § 1681, et seq. (Against Defendants University of North Carolina and Board of Governors of the University of
North Carolina) 55. As alleged in this Complaint, Defendants University of North Carolina and Board of Governors of the University of North Carolina are discriminating on the basis of sex in violation of Title IX.
COUNT III Violation of the Violence Against Women Reauthorization Act of 2013 (“VAWA”)
42 U.S.C. § 13925(b)(13) (Against Defendants North Carolina Department of Public Safety, University of North Carolina,
and Board of Governors of the University of North Carolina) 56. As alleged in this Complaint, Defendants North Carolina Department of Public Safety, University of North Carolina, and Board of Governors of the University of North Carolina are discriminating on the basis of sex and gender identity, in violation of VAWA.
PRAYER FOR RELIEF WHEREFORE, the United States respectfully requests that this Court: A. Declare that, by complying with and implementing H.B. 2’s provisions that apply to multiple-occupancy bathrooms or changing facilities, Defendants discriminate on the basis of sex in violation of Title VII; B. Declare that, by complying with and implementing H.B. 2’s provisions that apply to multiple-occupancy bathrooms or changing facilities, Defendants University of North Carolina and Board of Governors of the University of North Carolina discriminate on the basis of sex in violation of Title IX;
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C. Declare that, by complying with and implementing H.B. 2’s provisions that apply to multiple-occupancy bathrooms or changing facilities, Defendants North Carolina Department of Public Safety, University of North Carolina, and Board of Governors of the University of North Carolina discriminate on the basis of sex and gender identity in violation of VAWA;
D. Issue a preliminary and permanent injunction to prevent further violations of federal law; and
E. Grant such additional relief as the needs of justice may require. Dated: May 9, 2016

Respectfully submitted,

Vanita Gupta Principal Deputy Assistant Attorney General Civil Rights Division United States Department of Justice

BY:

Delora L. Kennebrew Chief Employment Litigation Section Civil Rights Division United States Department of Justice

Shaheena A. Simons Chief Educational Opportunities Section Civil Rights Division United States Department of Justice

/s Corey Stoughton Corey Stoughton NY Bar Number: 4152633 Attorney for Plaintiff Senior Counsel Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW MJB, Room 5642 Washington, DC 20530 Telephone: (202) 616-2124 E-mail: corey.stoughton@usdoj.gov

/s Ripley Rand Ripley Rand NC Bar Number: 22275 Attorney for Plaintiff United States Attorney Middle District of North Carolina United States Department of Justice 101 South Edgeworth Street, 4th Floor Greensboro, NC 27401 Telephone: (336) 333-5351 E-mail: ripley.rand@usdoj.gov

Lori B. Kisch DC Bar Number: 491282 Attorney for Plaintiff Special Litigation Counsel

Whitney M. Pellegrino DC Bar Number: 490972 Attorney for Plaintiff Special Legal Counsel

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Employment Litigation Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW PHB Room 4605 Washington, DC 20530 Telephone: (202) 305-4422 E-mail: lori.kisch@usdoj.gov

Educational Opportunities Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW PHB Room 4004 Washington, DC 20530 Telephone: (202) 514-4092 E-mail: whitney.pellegrino@usdoj.gov

Candyce Phoenix VA Bar Number: 80800 Attorney for Plaintiff Senior Trial Attorney Employment Litigation Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW PHB, Room 4031 Washington, DC 20530 Telephone: (202) 616-3871 E-mail: candyce.phoenix@usdoj.gov

Torey B. Cummings MA Bar Number: 664549 Attorney for Plaintiff Senior Trial Attorney Educational Opportunities Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW PHB, Room 4112 Washington, DC 20530 Telephone: (202) 514-4092 E-mail: torey.cummings@usdoj.gov

Sean Keveney TX Bar Number: 24033863 Attorney for Plaintiff Trial Attorney Housing and Civil Enforcement Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW NWB, Room 7010 Washington, DC 20530 Telephone: (202) 514-4838 E-mail: sean.keveney@usdoj.gov

Dwayne J. Bensing DC Bar Number: 1012138 Attorney for Plaintiff Trial Attorney Educational Opportunities Section Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, NW PHB, Room 4015 Washington, DC 20530 Telephone: (202) 616-2679 E-mail: dwayne.bensing@usdoj.gov

ATTORNEYS FOR THE UNITED STATES OF AMERICA

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 </s> 18BC
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:16−cv−00425−TDS−JEP

UNITED STATES OF AMERICA V. STATE OF NORTH CAROLINA, ET AL. Assigned to: JUDGE THOMAS D. SCHROEDER Referred to: MAG/JUDGE JOI ELIZABETH PEAKE Related Case: 1:16−cv−00236−TDS−JEP Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/09/2016 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

UNITED STATES OF AMERICA

represented by CANDYCE PHOENIX U. S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION, EDUCATION OPPORTUNITIES SECTION 601 D ST., NW WASHINGTON, DC 20579 202−616−3871 Fax: 202−514−1005 Email: candyce.phoenix@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

COREY L. STOUGHTON U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., N.W. WASHINGTON, DC 20530 202−66−2124 Fax: 202−514−0293 Email: corey.stoughton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

DWAYNE J. BENSING U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW, STE. 4500 PHB WASHINGTON, DC 20530 202−616−2679 Fax: 202−514−8337 Email: Dwayne.Bensing@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

JON W. DAVIDSON LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 4221 WILSHIRE BLVD., STE. 280 LOS ANGELES, CA 90010 213−382−7600 X229 Fax: 213−351−6050 Email: jdavidson@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

LORI B. KISCH U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., NW, STE. 4500

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V. Defendant PATRICK MCCRORY
Defendant STATE OF NORTH CAROLINA
Defendant

PHB WASHINGTON, DC 20530 202−305−4422 Fax: 202−514−1005 Email: lori.kisch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
RIPLEY RAND U. S. ATTORNEY'S OFFICE 101 S. EDGEWORTH ST., 4TH FLOOR GREENSBORO, NC 27401 336−333−5351 Fax: 336−333−5438 Email: ripley.rand@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
SEAN R. KEVENEY U. S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVE., N.W. WASHINGTON, DC 20530 202−514−4838 Fax: 202−514−1116 Email: sean.r.keveney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
TOREY B. CUMMINGS U. S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION, EDUCATION OPPORTUNITIES SECTION 601 D ST., NW WASHINGTON, DC 20579 202−305−4204 Fax: 202−514−8337 Email: Torey.Cummings@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
WHITNEY PELLEGRINO U. S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION, EDUCATION OPPORTUNITIES SECTION 601 D ST., NW WASHINGTON, DC 20579 202−616−9939 Fax: 202−514−8337 Email: Whitney.Pellegrino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY
Defendant
UNIVERSITY OF NORTH CAROLINA
Defendant
UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS

V. Intervenor Defendant Phil Berger 16 West Jones Street Room 2007 Raleigh, NC 27601
Intervenor Defendant Tim Moore 16 West Jones Street Room 2304 Raleigh, NC 27601

represented by STUART K. DUNCAN SCHAERR DUNCAN LLP 1717 K ST., NW, STE. 900 WASHINGTON, DC 20006 202−714−9492 Fax: 571−730−4429 Email: KDuncan@Schaerr−Duncan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR. ATTORNEY AT LAW 5821 FAIRVIEW RD., STE. 207 CHARLOTTE, NC 28209 704−552−7742 Fax: 704−552−9287 Email: rdpotter@bellsouth.net ATTORNEY TO BE NOTICED
represented by STUART K. DUNCAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/09/2016
05/10/2016
05/10/2016

# Docket Text
1 COMPLAINT against PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS (Related Case # 1:16−cv−236), filed by UNITED STATES OF AMERICA. (Attachments: # 1 Civil Cover Sheet)(PHOENIX, CANDYCE) (Entered: 05/09/2016)
2 COMPLAINT against All Defendants (Related Case # 1:16−cv−236), filed by UNITED STATES OF AMERICA.(PHOENIX, CANDYCE) The 1 Complaint filed on 5/9/2016 was re−filed on 5/10/2016 by counsel as Document 2 pursuant to the Notice of Corrective Action received from Clerk's Office in order to comply with Local Rule 5.3(e)(2). (Powell, Gloria). (Entered: 05/10/2016)
3 Summons Issued as to PATRICK MCCRORY, NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, STATE OF NORTH CAROLINA,

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05/10/2016 05/11/2016 05/13/2016
05/13/2016 05/17/2016 05/17/2016 05/17/2016 05/17/2016

UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS. (Attachments: # 1 UNC, # 2 NC, # 3 DPS, # 4 BOG)(Coyne, Michelle) (Entered: 05/10/2016)
4 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Attachments: # 1 Consent Form)(Coyne, Michelle) (Entered: 05/10/2016)
5 NOTICE of Appearance by attorney SEAN R. KEVENEY on behalf of Plaintiff UNITED STATES OF AMERICA Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP(KEVENEY, SEAN) (Entered: 05/11/2016)
6 NOTICE of Appearance by attorney JON W. DAVIDSON on behalf of Plaintiffs AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, JOAQUIN CARCANO, ANGELA GILMORE, H.S., PAYTON GREY MCGARRY, BEVERLY NEWELL, KELLY TRENT Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP(DAVIDSON, JON) (Entered: 05/13/2016)
7 SUMMONS Returned Executed by UNITED STATES OF AMERICA as to All Defendants. (PHOENIX, CANDYCE) (Entered: 05/13/2016)
8 MOTION to Intervene by Phil Berger, Tim Moore. Responses due by 6/10/2016 (Attachments: # 1 Exhibit Proposed Answer, # 2 Text of Proposed Order Proposed Order)(DUNCAN, STUART) (Entered: 05/17/2016)
9 MEMORANDUM filed by Intervenor Defendants Phil Berger, Tim Moore re 8 MOTION to Intervene filed by Phil Berger, Tim Moore. (Attachments: # 1 Exhibit Exhibit A)(DUNCAN, STUART) (Entered: 05/17/2016)
10 NOTICE of Appearance by attorney ROBERT D. POTTER, JR on behalf of Intervenor Defendants Phil Berger, Tim Moore (POTTER, ROBERT) (Entered: 05/17/2016)
11 NOTICE of Appearance by attorney STUART K. DUNCAN on behalf of Intervenor Defendants Phil Berger, Tim Moore (DUNCAN, STUART) (Entered: 05/17/2016)

Case: 1:16-cv-425 document<docnum> filed <datefiled> 4 of 4


[CONTENT] one | North Carolina Session | 2016-3 | House | Bill 2 | March 23, 2016 ||| February 22, 2016 | the Charlotte City Council ||| April 1, 2016 ||| March 23, 2016 | North Carolina | House | Bill 2 | North Carolina | Pat McCrory ||| North Carolina |||  ||| North Carolina |||  ||| May 4 | Pat McCrory | the Justice Department | U.S. ||| north-carolina-hb2/481347/">asked</a | May 9 | State | H.B. 2 ||| the United States | the morning | May 9 | the Eastern District | North Carolina | Title VII of the Civil Rights Act | 42 | U.S.C. | § | 2000e | the Violence Against Woman Act | 42 ||| Clearinghouse ||| A few hours later | U.S. | District Court | the Middle District | North Carolina ||| DOJ | North Carolina | Title VII of the Civil Rights Act | 42 | U.S.C. | § | 2000e | the Education Amendments Act | 1972 | 20 | U.S.C. | § | 1681 | the Violence Against Women Reauthorization Act | 42 ||| DOJ ||| U.S. | Court ||| North Carolina’s | Roy Cooper | http://www.charlotteobserver.com/news/politics-government/article68780957.html">said</a ||| June 10, 2016 | the United States | Defendants | the Violence Against Women Act | the Department of Justice’s Office on Violence Against Women | OVW ||| The United States | Defendants ||| June 23, 2016 | Thomas D. Schroeder | the United States ||| 192 | 620 ||| June 29, 2016 | Thomas D. Schroeder | Phil Berger | Pro Tempore | North Carolina | Tim Moore | North Carolina | House of Representatives |||  ||| July 14, 2016 | Thomas D. Schroeder | four ||| July 25, 2016 | Court | Carcaño v. McCrory</i>(1:16CV236 | Berger v. United | North Carolinians ||| Plaintiffs | Berger v. United | July 28, 2016 | North Carolinians | August 31, 2016 ||| August 12, 2016 | Defendants | the Supreme Court ||| Ten days later | the United States | Defendants ||| The United States | Defendants ||| December 16, 2016 | Carcano | McCrory</i ||| the Supreme Court | Gloucester County School Board | G.G. ||| 273 ||| the United States | the United States ||| January 1, 2017 | Roy Cooper | NC | North Carolina ||| February 22, 2017 | the Department of Justice | the Department of Education | Trump ||| March 2, 2017 | Plaintiff | December 16, 2016 | the United States | two ||| March 28, 2017 | Plaintiff | the Carcaño Plaintiffs | UNC Defendants | Legislative Defendants | the State Defendants ||| The United States | UNC | Legislative Defendants | December 16, 2016 | G.G. v. | Gloucester County School | 4th ||| 15-2056 | Carcaño | 4th ||| 16-1989 ||| The Carcaño Plaintiffs | the State Defendants ||| March 30, 2017 | the North Carolina Legislature | House | Bill 142 |||  ||| December 2020 ||| April 14, 2017 | Plaintiff | House | Bill 142 | Defendants [SUMMARY] This is one of several federal lawsuits addressing North Carolina Session Law 2016-3, House Bill 2 (HB2), which was passed on March 23, 2016.  For the others, see the <a href="https://www.clearinghouse.net/results.php?saveRef=pl&search=source%7Cgeneral%3BspecialCollection%7C43%3Borderby%7CfilingYear%3B">case collection.</a>

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 individuals only be permitted to use bathrooms and changing facilities that correspond to the sex on their birth certificates while in government buildings.  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,” which 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 <a href="http://www.theatlantic.com/politics/archive/2016/05/north-carolina-hb2/481347/">asked</a> the Governor to respond by close of business on May 9, and that he 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 a declaratory judgment that HB2 did not violate Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e et seq.), or the Violence Against Woman Act (42 U.S.C. § 13925(b)(13)).  That case is in the Clearinghouse as <a href="http://www.clearinghouse.net/detail.php?id=15316">PA-NC-0003</a>, and is described there. A few hours later, the U.S. filed this lawsuit, seeking to enjoin operation of HB2, in the U.S District Court for the Middle District of North Carolina. The DOJ sued the State of North Carolina under Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e et seq.), under Title IX of the Education Amendments Act of 1972 (20 U.S.C. §§ 1681 et seq.), and under the Violence Against Women Reauthorization Act (42 U.S.C. § 13925(b)(13)). The DOJ sought declaratory and injunctive relief. Specifically, the U.S. asked the Court to find that HB 2’s Part I—the part that instructs public agencies to deny transgender individuals access to multiple-occupancy bathrooms and changing facilities consistent with their gender identity--violated federal law, and to issue an injunction ordering the state to stop violating the federal laws in question.

North Carolina’s former Attorney General, Roy Cooper, had <a href=" http://www.charlotteobserver.com/news/politics-government/article68780957.html">said</a> that he agreed that HB2 is illegal, and declined to defend it against this and the other lawsuits challenging it.

On June 10, 2016 the United States and the Defendants issued a joint motion to enjoin automatic suspension of funds received under the Violence Against Women Act that prohibits recipients of federal funds administered by the Department of Justice’s Office on Violence Against Women (“OVW”) from engaging in discrimination based on sex and gender identity. The United States and the Defendants agreed that the suspension of funds would on balance harm the public interest. On June 23, 2016, Judge Thomas D. Schroeder granted the parties' joint motion to enjoin the United States from automatically withholding funds. 192 F.Supp.3d 620. 

On June 29, 2016, Judge Thomas D. Schroeder granted Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House of Representatives, the right to permissively intervene as defendants in the case. Several other private individuals requested to intervene on either side of the case and their motions were denied. 

On July 14, 2016, Judge Thomas D. Schroeder ordered that parties in the four related cases of HB2 file a short joint notice identifying any agreements reached and explaining their respective positions. On July 25, 2016, the Court consolidated this case with <i>Carcaño v. McCrory</i>(1:16CV236), <i>Berger v. United States</i> (1:16CV844), and <i>North Carolinians for Privacy v. United States</i> (1:16CV845) for discovery purposes only. After this consolidation, the Plaintiffs voluntarily dismissed <i>Berger v. United States</i> on July 28, 2016, and <i>North Carolinians for Privacy v. United States</i> on August 31, 2016.

On August 12, 2016, the Defendants submitted motions to stay the proceedings in light of the Supreme Court hearing the <a href="https://www.clearinghouse.net/detail.php?id=14977">G.G.</a> case regarding similar issues. Ten days later, the United States submitted a response in opposition to the Defendants' request to stay the proceedings. The United States stated that the Defendants were violating federal laws and that the proceedings should not be delayed in anticipation of a change in the law. 

On December 16, 2016, upon the joint motion of the parties and in the interest of judicial economy, the court stayed the proceedings in the case and in the related case of <i>Carcano v. McCrory</i> (1:16CV236) pending disposition in the Supreme Court of Gloucester County School Board v. G.G., No. 16- 273 (S. Ct.). At the United States’ request, the court did not include the United States’ pending motion for preliminary injunction in the stay. 

On January 1, 2017, Roy Cooper, who opposed HB2 as NC Attorney General, took office as Governor of North Carolina, changing the Governor’s position. On February 22, 2017, the Department of Justice and the Department of Education, under President Trump, withdrew and rescinded their earlier guidance documents, changing the federal government’s position. On March 2, 2017, the Plaintiff submitted a request to expand the stay (granted on December 16, 2016) to include the preliminary injunction request, on the grounds that the United States had withdrawn two guidance documents upon which the motion was based. 

On March 28, 2017, the Plaintiff submitted a joint status report with the Carcaño Plaintiffs, UNC Defendants, Legislative Defendants, and the State Defendants. The United States aligned itself with the UNC and Legislative Defendants requesting that the court leave the stay entered on December 16, 2016, until resolution of the pending appeals in <i>G.G. v. Gloucester County School Board</i> (4th Cir. No. 15-2056) and <i>Carcaño v. Cooper</i> (4th Cir. No. 16-1989). The Carcaño Plaintiffs and the State Defendants requested that the stay be lifted so that parties could confer about a new discovery plan. 

On March 30, 2017, the North Carolina Legislature, and the newly appointed Governor enacted House Bill 142 which, among other things, repealed HB2. The repeal included a compromise that left many on both sides unhappy. The compromise prevented municipalities from passing anti-discrimination laws until December 2020, and the legislature still had the ability to regulate bathrooms. 

On April 14, 2017, the Plaintiff filed a notice of voluntary dismissal stating that in light of the passage of House Bill 142, the claims and causes of actions against the Defendants would be dismissed with prejudice, which closed the case.
