A new proposed agreement filed in federal court on Friday would make clear that transgender people can use restrooms and other public facilities that align with their gender identity, but Republican state legislative leaders continue to oppose it.
The agreement, called a consent decree, was filed in U.S. District Court in the Middle District of North Carolina. If U.S. District Judge Thomas D. Schroeder approves the agreement, that would settle all of the claims in a pending federal lawsuit over a state law, House Bill 142, that regulations what restrooms and other public facilities transgender people can use in North Carolina.
House Bill 142 replaced a much more controversial law called House Bill 2, which barred transgender people from using bathrooms and other public facilities that matched their gender identity. In other words, under HB2, transgender women would have been forced to use the men’s bathroom and transgender men would be forced to use the women’s bathroom. But the law had no enforcement mechanism and neither does the new law, HB142.
HB2, passed in 2016, caused a national backlash, with critics calling it the most anti-LGBT law in the country. The law did other things, including creating a statewide ordinance that excluded gender identity. Plaintiffs, including a recent graduate of UNC School of the Arts who is a transgender woman, filed a lawsuit against HB2.
State legislators reached a compromise in 2017, resulting in HB142, but plaintiffs filed a new lawsuit against that law, claiming that the law was vague and that transgender people remained uncertain if they would be criminally prosecuted for using a bathroom that aligned with their gender identity.
In a hearing on May 17, Schroeder ordered an updated consent decree be filed by Friday that would satisfy legislative leaders. The original proposed consent decree was agreed to by the plaintiffs and Gov. Roy Cooper and other members of the state’s executive branch. That agreement was filed with the court on Dec. 21, 2018.
The agreement would make legally binding a ruling Schroeder made last year about HB142. Schroeder concluded that the state law does not prohibit transgender people from using public bathrooms and other facilities that align with their gender identity.
The agreement also would prohibit members of the executive branch from prosecuting transgender people from using restrooms and other facilities aligned with their gender identity.
The agreement also includes a section in which executive branch members would be prohibited from enforcing a part of HB142 to keep local governments from interpreting existing ordinances “as protecting against discrimination on the basis of sexual orientation, gender identity or gender expression.”
The modified agreement clarifies language to address some concerns that Schroeder and attorneys for Senate Leader Phil Berger and House Leader Tim Moore had.
But according to a joint status report that was also filed Friday, Berger and Moore are still opposed to the agreement.
Gene Schaerr, an attorney representing Berger and Moore, said at the May 17 hearing that the consent decree raised 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, he said.
The status report said that legislative leaders “remain concerned that the decree would limit, for all time, how State officers can apply State trespass and other laws, including how the Attorney General cooperates with local law enforcement.”
“It is for the Legislature, not any transient group of executive officers, to establish the permanent requirements of North Carolina law,” the status report said. “Any federal consent decree that binds not only current state officials, but also their successors, in the application of state law therefore raises serious federalism and separation-of-powers concerns.”