Filed Date: May 9, 2016
Closed Date: July 18, 2016
Clearinghouse coding complete
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.
Ryan Berry (6/16/2016)
Rachel Czwartacky (10/18/2018)
Isabel Hershey (4/13/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4303709/parties/berger-v-united-states-department-of-justice/
Flanagan, Louise W. (North Carolina)
Duncan, Stuart Kyle (Louisiana)
Bowers, Karl S. (South Carolina)
Brooks, Brennan Tyler (North Carolina)
Gordon, Frank J. (North Carolina)
Flanagan, Louise W. (North Carolina)
Schroeder, Thomas D. (North Carolina)
Last updated July 7, 2023, 3:12 a.m.
State / Territory: North Carolina
Filing Date: May 9, 2016
Closing Date: July 18, 2016
Case Ongoing: No
The President pro tempore of the North Carolina senate and the Speaker of the North Carolina House of Representatives
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Type of Facility: