LGBT rights advocates filed a lawsuit Monday challenging North Carolina’s statewide non-discrimination employment law after Gov. Pat McCrory signed the law Thursday evening.
Senate President Pro-Tem Sen. Phil Berger (R-Rockingham) and House Speaker Rep. Tim Moore (R-Cleveland) issued a joint statement Monday in response to the lawsuit, saying, “While they’ve accused the state of disrespecting local control, the irony is far-left groups like the national ACLU, their out-of-state lawyers and Attorney General Roy Cooper want to use North Carolina as a pawn in their extreme agenda to force women and young girls to welcome grown men into their bathrooms and locker rooms nationwide.
“This lawsuit takes this debate out of the hands of voters and instead attempts to argue with a straight face that there is a previously undiscovered ‘right’ in the U.S. Constitution for men to use women’s bathrooms and locker rooms – but we are confident the court will find the General Assembly acted properly in accordance with existing state and federal law.”
Berger calls on Cooper to resign
Berger also responded today to Cooper’s announcement that he will not defend HB 2 in court. Berger said, “Roy Cooper’s refusal to defend the law makes clear he wants the ACLU to win by default in federal court what they can’t win at the ballot box and allow men to walk into locker rooms at YMCAs across our country and undress in front of young girls. His zeal for pandering for the extreme left’s money and agenda in his race for governor is making it impossible for him to fulfill his duties as attorney general – and he should resign immediately.”
In a press conference at the state Department of Justice, Cooper said, “This shameful new law has brought them upon us. Discrimination is wrong, period. The governor and the legislature should repeal this law.”
Cooper is still officially a named party in the lawsuit but will not be defending himself and said that his office “will not be involved in those lawsuits.”
The law was passed in the single-day special session in response to a broad Charlotte ordinance passed in February that allowed transgender people to use the restroom aligned with their gender identity, in addition to expanding the city non-discrimination ordinance to include gender identity and sexual orientation.
The state legislation also requires people to use the public restroom or changing facility of their biological sex and prohibits states from passing local ordinances inflating the local minimum wage.
The state law only affects use of publicly owned facilities, as regulation on private businesses is already covered in the state building code, though the Charlotte city council ordinance attempted to supersede state building code laying new requirements on businesses.
Also, House Speaker Pro Tem Skip Stam (R-Wake) took aim at complaints that the special session cost too much. “It would’ve taken a lawsuit to handle it and it is a whole lot cheaper to spend $42,000 on a one-day session than half a million to do a lawsuit,” Stam said.
Stam said that the Charlotte city council tried to exercise control over hundreds of businesses when the city does not have that power.
Three groups power lawsuit
The lawsuit is backed by Lambda Legal, the American Civil Liberties Union of North Carolina and Equality North Carolina (ACLU-NC), who are supporting the three plaintiffs: two transgender people and a law professor from Durham.
The individual plaintiffs in this case are Joaquín Carcaño, 27, a UNC-Chapel Hill employee from Carrboro; Payton McGarry, 20, a UNC-Greensboro student who was born and raised in Wilson; and Angela Gilmore, 52, a North Carolina Central University law professor.
The plaintiffs allege that the legislation was discriminatory to them, claiming in the lawsuit that “by singling out LGBT people for disfavored treatment and explicitly writing discrimination against transgender people into state law, (the law) violates the most basic guarantees of equal treatment and the U.S. Constitution.”
The suit was brought against McCrory, Attorney General Roy Cooper, and the University of North Carolina System.
“We’re challenging this extreme and discriminatory measure in order to ensure that everyone who lives in and visits North Carolina is protected under the law,” said Chris Brook, legal director of ACLU-NC. “This cruel, insulting, and unconstitutional law is an attack on fairness in employment, education, and local governance that encourages discrimination against thousands of LGBT people who call North Carolina home, and particularly targets transgender men and women. HB 2 aims to override local school board policies, local public accommodations laws, and more.”
North Carolina is a Dillon’s Rule state, leaving almost all powers ultimately with the state, except those powers that the state chooses to grant localities to exercise. Such an arrangement seemingly gives the state the power to enact the powers in HB 2, unless a court finds the legislation unconstitutional.
The case was filed in the U.S. District Court for the Middle District of North Carolina.
The complaint argues that HB 2 is unconstitutional because it violates the Equal Protection and Due Process clauses of the 14th Amendment. The plaintiffs also allege the law violates Title IX by discriminating against students and school employees on the basis of sex, but Title IX has never been defined in court to include a transgender persons’ chosen genders, but only biological gender.
In 2014 the Office for Civil Rights in the U.S. Department of Education issued an official guideline saying that transgender students are protected from discrimination under Title IX, but that view has never been backed up by a court opinion.
Currently a similar case in Virginia is before the 4th Circuit for an appeal after it was ruled that restricting bathroom access by biological sex did not constitute a Title IX violation, but no decision has come down.