A federal judge is considering whether to approve a proposed agreement that could help bring to a close a legal fight over a state law regulating what restrooms and other public facilities transgender people can use in North Carolina.
The legal fight first started over House Bill 2, which was passed in 2016 soon after the city of Charlotte approved a non-discrimination ordinance that allowed transgender people to use public bathrooms that aligned with their gender identity, instead of the biological sex found on their birth certificate. That law caused a backlash, with critics calling it the most anti-LGBT law in the country. That led to a compromise in March 2017, culminating in a new law, House Bill 142, that partially repealed House Bill 2.
But plaintiffs who filed the initial lawsuit amended their complaint, alleging that the new law was too vague and that transgender people remained uncertain whether they might be criminally prosecuted for using the bathroom aligned with their gender identity. The plaintiffs include a recent graduate of UNC School of the Arts who is a transgender woman.
A proposed consent decree that was agreed to by the plaintiffs and Gov. Roy Cooper and other members of the state’s executive branch was filed with U.S. District Court on Dec. 21, 2018. The agreement would essentially allow transgender people to use whatever public bathroom or other facilities they want that are within the control of the executive branch. Members of the executive branch also wouldn’t be able to prosecute transgender people for using bathrooms that matched their gender identity, according to the proposed consent decree.
The consent decree also says members of the executive branch are prohibited from enforcing a part of House Bill 142 to keep local governments from interpreting existing ordinances “as protecting against discrimination on the basis of sexual orientation, gender identity or gender expression.”
At a hearing Friday in a Winston-Salem federal courtroom, U.S. District Judge Thomas Schroeder ordered that an updated consent decree be filed by May 31. He said he urged all parties to work toward an agreement that would satisfy legislative leaders.
Schroeder also expressed concerns about federalism and some vague language in the proposed consent decree.
The hearing came the same week that State Sen. Dan Bishop, who wrote House Bill 2, won the Republican primary in 9th Congressional District. A special election was held Tuesday after the 2018 election results were thrown out due to fraud allegations.
Andrew Noll and Chase Strangio, attorneys for the plaintiffs, said the proposed consent decree would end the legal fight over House Bill 142. It would also reaffirm a ruling that Schroeder made in October 2018 in which he said House Bill 142 would not prohibit transgender people from using bathrooms and other public facilities that aligned with their gender identity.
But Gene Schaerr, an attorney for Senate Leader Phil Berger and House Leader Tim Moore, said the consent decree raises troubling issues, particularly about federalism.
He said state legislative leaders worry about a federal court having jurisdiction over state actions. And approving such a consent decree would put Schroeder in the position of appearing to side with the plaintiffs.
“Our clients care a lot about federalism,” Schaerr said.
He also questioned the negotiations over the consent decree, saying the plaintiffs and the executive branch defendants aren’t genuine adversaries as defined under the law. He pointed out that when Cooper was running for governor, he campaigned against House Bill 2.
Olga Vysotskaya de Brito, a special deputy attorney general representing the executive branch, argued that if the consent decree is rejected, defendants still reserve the right to continue litigation against the plaintiffs on certain issues. And she said the plaintiffs and executive branch defendants have gone over 10 to 11 different drafts of the consent decree.
Schroeder said he is concerned about the federalism issue as well as other issues. He urged plaintiffs and executive branch defendants to hash out a new consent decree that addresses his concerns and that might be acceptable to legislative leaders.
Lead plaintiff Joaquin Carcano, a transgender man who works at UNC Chapel Hill, said this has been a long and frustrating process “to seek protections for our LGBTQ community.”
“We won’t stop fighting for the protection and safety we rightfully deserve,” he said in a statement.