Gov. Roy Cooper said Wednesday that transgender people will be able to use public bathrooms that correspond with their gender identity under a proposed settlement of a lawsuit that originated as a challenge to North Carolina’s controversial House Bill 2.
Challengers had continued their lawsuit after legislators passed and the Democratic governor signed a law this spring replacing HB2, the law commonly known as the “bathroom bill.”
But now the challengers are willing to drop the suit if a federal judge signs off on the proposed order that they submitted Wednesday along with Cooper, his Cabinet secretaries and state Attorney General Josh Stein and which applies to bathrooms in those officials’ agencies.
The proposed order says that under House Bill 142, “with respect to public facilities that are subject to Executive Branch Defendants’ control or supervision, 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 in a statement. “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.”
Cooper announced the proposed settlement at the same time he issued an executive order that he said would prohibit employment discrimination in his administration on the basis of race, gender, National Guard or veteran status, sexual orientation, or gender identity. The executive order also applies to state contractors.
HB2 had required people in government facilities to use bathrooms matching the gender on their birth certificates, and blocked a Charlotte ordinance that added anti-discrimination protections for LGBT people. House Bill 142 created a moratorium on local nondiscrimination ordinances through Dec. 1, 2020. And it left 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.
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 HB2 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 they declined to join in a consent decree which simply seeks to protect all North Carolinians, including transgender North Carolinians, from discrimination.”
Berger’s spokeswoman said Wednesday his attorney had yet to review the proposal and until then his office would be “uncomfortable weighing in.” Moore’s spokesman did not respond to a request for comment.
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.”
Sen. Dan Bishop, a Mecklenburg County Republican who was one of the sponsors of HB2, 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.”
Bishop urged “anyone still prosaic enough to have regard for rights to physiological privacy” to call Cooper’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 administration of former President Barack Obama.
In February, Trump’s administration withdrew protections for transgender students in public schools that 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 targets of discrimination with the adoption of HB2.
‘We will continue to fight’
“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.”
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.”