Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carcano v. Cooper

United States District Court, M.D. North Carolina

July 22, 2019

JOAQUÍN CARCAÑO; PAYTON GREY MCGARRY; HUNTER SCHAFER; MADELINE GOSS; ANGELA GILMORE; QUINTON HARPER; and AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Plaintiffs,
v.
ROY A. COOPER, III, in his official capacity as Governor of North Carolina; UNIVERSITY OF NORTH CAROLINA; DR. WILLIAM ROPER, in his official capacity as President of the University of North Carolina; JOSHUA STEIN, in his official capacity as Attorney General of North Carolina; MACHELLE SANDERS, in her official capacity as Secretary of the North Carolina Department of Administration; MANDY K. COHEN, in her official capacity as Secretary of the North Carolina Department of Health and Human Services; and JAMES H. TROGDON, III, in his official capacity as Secretary of the North Carolina Department of Transportation, Defendants, and PHIL BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; and TIM MOORE, in his official capacity as Speaker of the North Carolina House of Representatives, Intervenor-Defendants.

          MEMORANDUM OPINION AND ORDER

          Thomas D. Schroeder United States District Judge.

         Before the court is the supplemental joint motion of Plaintiffs Joaquín Carcaño, Payton Grey McGarry, Hunter Schafer, Madeline Goss, Angela Gilmore, Quinton Harper, and the American Civil Liberties Union of North Carolina (together, “Plaintiffs”), along with Defendants Governor Roy Cooper, Attorney General Joshua Stein, and Secretaries Machelle Sanders, Mandy Cohen, and James Trogdon (together, “Executive Branch Defendants”) for entry of a proposed consent decree to resolve this lawsuit as between them. (Doc. 289.) Intervenor-Defendants Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House, proceeding in their official capacities as heads of the North Carolina General Assembly's two chambers, oppose the motion.[1] (Doc. 292.) The remaining Defendants, the University of North Carolina (“UNC”) and its President, Dr. William Roper[2] (together, “UNC Defendants”), take no position. (Doc. 288 at 3.) For the reasons that follow, the motion will be granted.

         I. BACKGROUND

         This case has an extensive history that is more completely recounted in the court's earlier decisions. See, e.g., (Doc. 248 at 4-14). The lawsuit originated as a challenge to North Carolina's Public Facilities Privacy & Security Act, 2016 N.C. Sess. Laws 3, known as House Bill 2 (“HB2”), which required, among other things, that public agencies ensure that multiple occupancy restrooms, showers, and other similar facilities be “designated for and only used by” persons based on the “biological sex” listed on their birth certificate. The court entered a preliminary injunction, granting Plaintiffs' request in part and denying it in part, based on controlling precedent at the time. (Doc. 127.)

         During the pendency of the case and following substantial economic and other pressures brought against the State as a result of HB2, the North Carolina legislature enacted - and the newly-elected Governor, Defendant Cooper, signed - 2017 N.C. Sess. Laws 4, known as House Bill 142 (“HB142”). Section 1 of HB142 repealed HB2, Section 2 bars state agencies from “regulati[ng] . . . access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly, ” and Section 3 prohibits local governments from “enact[ing] or amend[ing] an ordinance regulating private employment practices or regulating public accommodations.” Section 4 provides that Section 3 “expires on December 1, 2020.”

         In the wake of the passage of HB142, the court dissolved its preliminary injunction (Doc. 205), and Plaintiffs filed a Fourth Amended Complaint (Doc. 210) claiming that HB142 and its predecessor HB2 violated their rights under the Fourteenth Amendment, Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).[3] The Fourth Amended Complaint contains over 400 detailed paragraphs recounting the procedural history of the litigation as well as the myriad actions that led to passage of HB142 and the concomitant repeal of HB2.

         On October 18, 2017, Plaintiffs and the Executive Branch Defendants moved jointly for entry of a consent decree. (Doc. 216.) A few days later, the UNC Defendants filed a motion to dismiss the lawsuit, as did Intervenor-Defendants. In a September 30, 2018 Memorandum Opinion and Order (Doc. 248), the court dismissed a No. of Plaintiffs' claims, leaving only the following: (1) Plaintiffs' Title VII and Title IX nominal-damages claims against UNC for the period in which HB2 was in force, as to which the court reserved ruling pending supplemental briefing; and (2) Plaintiffs' equal protection challenge to HB142 § 3, brought against the Executive Branch Defendants, as to which the court found that Plaintiffs had met their pleading burden.[4] The court also directed the parties to meet and confer as to the effect of its dismissal ruling on the proposed consent decree. (Id. at 63- 64.)

         As directed, the parties filed supplemental briefing regarding the motions to dismiss Plaintiffs' Title VII and Title IX claims. On December 21, 2018, Plaintiffs and the Executive Branch Defendants filed a second joint motion for entry of consent decree (Doc. 264), again opposed by Intervenor-Defendants. On April 23, 2019, Intervenor-Defendants filed what the court construed as an unopposed motion to stay the Title VII and Title IX proceedings pending the Supreme Court's review of Bostock v. Clayton County Board of Commissioners, 723 Fed.Appx. 964 (11th Cir. 2018), cert. granted, 139 S.Ct. 1599 (2019) (mem.) (whether Title VII prohibits discrimination against an employee on the basis of sexual orientation); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), cert. granted, 139 S.Ct. 1599 (2019) (mem.) (same); and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted, 139 S.Ct. 1599 (2019) (mem.) (whether Title VII prohibits discrimination against an employee on the basis of transgender status). (Doc. 282.)

         The court held a hearing on the pending motions on May 17, 2019. During the hearing, the court heard argument by Plaintiffs and the Executive Branch Defendants as to the proposed terms of the consent decree, as well as the objections of Intervenor-Defendants. The court also expressed its concerns as to certain provisions of the proposed consent decree. (Doc. 287.) A few days later, the court stayed all litigation as it pertains to Plaintiffs' remaining Title VII and Title IX claims and ordered the parties to meet and confer in an attempt to resolve the concerns raised at the hearing as to the terms of the proposed consent decree. (Doc. 286.)

         On May 31, 2019, Plaintiffs and the Executive Branch Defendants filed the present supplemental joint motion for entry of consent decree (Doc. 289), along with briefing (Docs. 290, 291) and a revised proposed decree (Doc. 289-1). The parties also filed a status report, as directed by the court, setting out the parties' positions. (Doc. 288.) Intervenor-Defendants filed a supplemental brief setting out their continued opposition to the motion. (Doc. 292.) On July 17, 2019, the court held a telephone hearing regarding the revised proposed decree, expressing additional concerns. Two days later, Plaintiffs filed a final version of the proposed consent decree. (Doc. 294-1.) The motion is now ready for decision.

         II. ANALYSIS

         Plaintiffs and the Executive Branch Defendants move for entry of a consent decree that would resolve all remaining claims against the Executive Branch Defendants.[5] (Doc. 289.) The proposed consent decree has four decretal paragraphs:

(1) With respect to public facilities that are subject to Executive Branch Defendants' control or supervision, the Consent Parties[6] agree that nothing in Section 2 of H.B. 142 can be construed by the Executive Branch Defendants to prevent transgender people from lawfully using public facilities in accordance with their gender identity. The Executive Branch Defendants as used in this paragraph shall include their successors, officers, and employees. This Order does not preclude any of the Parties from challenging or acting in accordance with future legislation.
(2) The Executive Branch Defendants, in their official capacities, and all successors, officers, and employees are hereby permanently enjoined from applying Section 2 of H.B. 142 to bar, prohibit, block, deter, or impede any transgender individuals from using public facilities under any Executive Branch Defendant's control or supervision, in accordance with the transgender individual's gender identity. Under the authority granted by the General Statutes existing as of December 21, 2018, and notwithstanding N.C. G.S. § 114-11.6, [7] the Executive Branch Defendants are enjoined from prosecuting an individual under Section 2 of H.B. 142 for using public facilities under the control or supervision of the Executive Branch, when such otherwise lawful use conforms with the individual's gender identity.
(3) The Consent Parties shall each bear their own fees, expenses, and costs with respect to all claims raised by Plaintiffs against the Executive Branch Defendants.
(4) All remaining claims filed by Plaintiffs against the Executive Branch Defendants in this action are hereby ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.