WS Chronicle

Court decree ensures that people who are transgender cannot be banned from facilities based on their gender under H.B. 2 replacement law

The State of North Carolina cannot use H.B. 142, the law that replaced H.B. 2, to prevent transgender individuals from using public restrooms and other facilities in state government buildings that match their gender under an agreement approved on July 23 by a federal court. 

U.S. Judge Thomas Schroeder signed a consent decree order that was jointly submitted by Governor Roy Cooper and civil rights groups representing LGBTQ North Carolinians in the three-year legal challenge to North Carolina’s notorious 2016 anti-LGBTQ law, House Bill 2, and the 2017 anti-LGBTQ law that replaced it, House Bill 142. The North Carolina General Assembly, which intervened in the lawsuit, opposed the consent decree. 

The American Civil Liberties Union and Lambda Legal represent six LGBTQ North Carolinians in the lawsuit. 

“After so many years of managing the anxiety of H.B.2 and fighting so hard, I am relieved that we finally have a court order to protect transgender people from being punished under these laws.” said Joaquin Carcaño, the lead plaintiff in the case. “This is a tremendous victory but not a complete one. While I am glad that Governor Cooper agreed to this settlement, it remains devastating to know that local protections for LGBTQ people are still banned under state law while so many members of our community continue to face violence, harassment, and discrimination simply because of who we are. The fight for full justice will continue.”

“Using facilities that match one’s gender identity is a basic necessity for full participation in society, and this order’s confirmation that transgender people can do so is an important victory.  Being able to safely navigate everyday life when you set foot outside your home is not a luxury.  It is a basic foundation for being treated and accepted as co-equal members of society, like everyone else,” said Tara Borelli, Lambda Legal Counsel.

“We are thrilled to obtain some clarity and relief for transgender North Carolinians who have been suffering under H.B. 2 and H.B. 142 for years. While this part of the court fight may be ending, so much urgent work remains as long as people who are LGBTQ are denied basic protections from violence and discrimination simply because of who they are,” said Irena Como, Acting Legal Director of the ACLU of North Carolina. “The shameful stain of House Bill 2 and the pain and harm it caused to so many people will always be part of North Carolina’s history. LGBTQ North Carolinians still lack comprehensive, statewide nondiscrimination protections while on the job, patronizing a business open to the public, or simply going about their daily lives.” 

The final consent decree is available at https://www.lambdalegal.org/in-court/legal-docs/carcano_nc_20190723-consent-decree

Background:

Passed in 2016, House Bill 2 removed local legal protections for LGBTQ people, among others, and prohibited transgender people from using public facilities matching their gender identity. The ACLU and Lambda Legal challenged the law on behalf of LGBTQ North Carolinians days after its passage. 

Later that year, the court granted a preliminary injunction to stop the University of North Carolina from enforcing the law against three plaintiffs in the case who are transgender. The lawsuit was amended to challenge H.B. 142 when the replacement law was passed in 2017. Last year Judge Schroeder ruled that the replacement law does not bar transgender people from using public restrooms and other facilities that match their gender.  That law still prevents cities from passing any prohibitions on discrimination in places of public accommodation or by employers until December 2020. 

The approved consent decree resolves the portion of the case challenging the 2017 law that replaced H.B. 2.  It does not resolve the portion of the case challenging the lawfulness of H.B. 2 for the period when it was in effect, which has been stayed pending the Supreme Court’s resolution of several employment discrimination cases involving LGBT employees.

For more background on the case: https://www.lambdalegal.org/in-court/cases/nc_carcano-v-mccrory