New Developments in the HB-142 Court Case (Carcano et al vs Cooper)

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. Source: Winston-Salem Journal

So the above is directly quoted from the article, and you can read the rest at the link provided. I am about to unpack what is actually there.

This lawsuit was brought by the ACLU originally when HB-2 was passed (yours truly was declined as a Plaintiff in the matter, because at the time I had and still have a birth certificate identifying me female – thus I was “not being prevented from using the bathroom which aligns with my identity.”) Forget the fact we had LEGISLATORS going around bragging that they would shoot trans women as they came out of bathrooms! If I had encountered such a vigilante, my birth certificate would have done me as much good as a violated PFA Order! But I digress…

The main Plaintiff in this matter is a transman I have come to know personally over these last three years, Jose Carcano. He and several other of the Plaintiffs in this matter either work at or attend UNC-Chapel Hill (the main campus) – which was covered by HB-2 as it is a state university (Duke, being private, was not impacted.)

As many of you know the so-called repeal of HB-2, known as HB-142 did not, according to the Plaintiffs in this matter, make clear whether or not trans people would continue to be prevented from using restrooms that aligned with their identity. Thus the lawsuit’s focus changed. The judge in this case, Thomas Schroeder, is a Dubya appointee, by the way…and to be honest has more than once surprised me in his rulings surrounding this matter. For the record, the original case was Carcano et al vs McCrory as McCrory was then Governor, which is why it is now Carcano et al vs Cooper.

So, Schroeder is set to issue a consent decree which would clear up this particular matter, effectively ending this lawsuit. It should be noted that neither HB-2 nor HB-142 had any enforcement mechanism. The original consent decree was filed with the court back in December, and an updated one was filed last month. The consent decree would make legally binding, a ruling issued last year by Schroeder, that said the law did NOT prevent trans people from using bathrooms aligned with their gender identity.

The consent decree ALSO contains a section which prohibits the state’s Executive Branch from preventing municipalities and other local governmental units from interpreting exiting laws to cover gender identity and sexual orientation (e.g. sex discrimination could arguably be interpreted to include transgender persons…and even sexual orientation – as one with a same-sex orientation is not behaving in a manner expected based on their sex, see?)

So this would NOT get rid of the horrible Moratorium that was established by HB-142, which does not currently sunset till Dec. 2020…but it might make the Moratorium all but moot. Needless to say the GOP in Sen. Berger and Rep. Moore oppose this…even after language was clarified to address many of their objections. (Which tells you that their stated objections are not in fact their true objections)

Their stated objections center around “Federalism” in that they do not believe the Federal Government should have a right to legally bind States. These are the same “small government” and “local control” people who had no problem with the State swooping in and forcing the City of Charlotte into abandoning its protections for trans people and also LGB people. Think about that for a minute.

Now let me unpack that another way. Some of you may know I won a lawsuit myself, some years ago…and acting as my own attorney against big time corporate lawyers. In my case, there was never any dispute over what had occurred…merely the legality of it. The Defendant in my case argued Federal law did not protect me. I argued that State law did. In the end, I prevailed. So you would think there was precedent for Moore and Berger’s complaint…right? WRONG.

My lawsuit had Interstate implications, as I was then a Pennsylvania resident working in New Jersey. And my case made clear that Federal law set the floor, not the ceiling, where civil rights were concerned…that States could protect at levels higher than the Federal Government. Three rulings in my case said so, and the Enriquez case was decided in our favor at the New Jersey Supreme Court. By extension, these rulings could argue that just as states may protect at levels higher than the Federal Government…so also may local government units protect at levels higher than their State. That State would set the floor, not the ceiling…in civil rights legislation. Nobody, by the way, seems to have any interest in filing a lawsuit here in North Carolina, using that precedent…to have the Moratorium declared illegal, by the way.

So this matter is far from resolved, but it does appear to be moving, at the moment, in a direction favorable to the transgender community.