In the most recent amended complaint filed by the plaintiffs in Carcaño v. McCrory, HB 2 is alleged to harm LGBT North Carolinians in violation of the Constitution’s Equal Protection Clause and privacy and liberty guarantees, and in violation of Title IX, which prohibits discrimination on the basis of gender nonconformity, gender identity, and transgender status by educational programs receiving federal funding. In their legal arguments, the plaintiffs contend that discrimination on the basis of both gender identity and sexual orientation requires heightened scrutiny by the courts—an argument that the Supreme Court has, to date, ducked, declining in previous LGBT-rights cases to articulate the precise level of scrutiny applicable to LGBT discrimination claims. With federal agencies—such as the U.S. Department of Education in its interpretation and enforcement of Title IX and the Equal Employment Opportunity Commission in its interpretation and enforcement of Title VII—having recognized that sexual orientation discrimination and gender identity discrimination fall under the umbrella of gender discrimination, federal courts may be poised to similarly address the extent to which sexual orientation, gender identity discrimination, and sex discrimination overlap, implicating heightened levels of scrutiny in constitutional discrimination claims.
Following the filing of Carcaño v. McCrory, in which North Carolina Attorney General Roy Cooper III was a named defendant in the original complaint along with North Carolina Governor Patrick McCrory and representatives of the University of North Carolina, Attorney General Cooper announced that he would not be defending HB 2. Anne Blythe, “NC Attorney General Refuses to Defend State from HB 2 Legal Challenge,” News & Observer, Mar. 29, 2016. Cooper was subsequently dropped as a defendant in the amended complaint, while several plaintiffs were added to join a number of LGBT plaintiffs challenging HB 2. In addition, Jenner and Block, no stranger to Supreme Court impact litigation, joined the legal team as counsel for the plaintiffs in the amended complaint. Between the filing of the original and amended complaints, Governor McCrory issued Executive Order 93. On the one hand, the executive order affirmed that state restrooms, locker rooms, and showers in schools and other public facilities would generally be maintained “on the basis of biological sex.” On the other hand, it stated that local governments might be allowed to establish employment policies and nondiscrimination practices in addition to those established by the state. It remains to be seen how courts will interpret HB 2 in light of the executive order and otherwise, including whether the courts will view HB 2 in a similar light to Colorado’s Amendment 2 from two decades ago; that statute was struck down by the Supreme Court inRomer v. Evans for denying citizens access to civil rights protections through legislation motivated by animus toward LGBT individuals.
While Carcaño v. McCrory was pending, the Department of Justice issued an ultimatum to North Carolina, requiring it to come into compliance by May 9, 2016, with federal agency rulings interpreting statutes including Title IX, Title VII, and the Violence Against Women Act (VAWA), as requiring transgender access to restrooms, locker rooms, and changing rooms, based on gender identity. Alan Blinder et al., “Countersuits over North Carolina’s Bias Law,”N.Y. Times, May 9, 2016. Not only did the state of North Carolina refuse to come into compliance by the department’s deadline, it responded by filing a lawsuit against the Department of Justice. Complaint for Declaratory Judgment, McCrory v. United States, No. 5:16-cv-00238BO (E.D.N.C. filed May 9, 2016). The state seeks a declaratory judgment striking down the department’s interpretation of Title VII and VAWA. North Carolina’s complaint is silent as to Title IX, and no educational institutions from North Carolina joined the suit to challenge the federal government’s interpretation of Title IX.
Attorney General Loretta Lynch’s response to the news of the state’s lawsuit was immediate and dramatic. She announced that the Department of Justice was filing its own federal lawsuit that same day against the state. Complaint, United States v. North Carolina, No. 1:16-cv-00425 (M.D.N.C. filed May 9, 2016). In a historic press conference, Attorney General Lynch compared the treatment of transgender people to the treatment of black Americans under Jim Crow laws, and she sent a strong message to transgender Americans:
Let me also speak directly to the transgender community itself. Some of you have lived freely for decades. Others of you are still wondering how you can possibly live the lives you were born to lead. But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward. Please know that history is on your side. This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy—but we’ll get there together.
Press Release, U.S. Dep’t of Justice, Attorney General Loretta E. Lynch Delivers Remarks at Press Conference Announcing Complaint Against the State of North Carolina to Stop Discrimination Against Transgender Individuals (May 9, 2016).
On May 13, 2016, the U.S. Department of Justice and the U.S. Department of Education issued a joint letter of guidance explaining the federal protections accorded to transgender students. While describing the general rights guaranteed to transgender students under federal law, the letter also specifically provides:
Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.
If the Fourth Circuit’s ruling in another recent transgender rights case is any indication, HB 2 may be declared unconstitutional by the Fourth Circuit, positioning the case to potentially become the next LGBT-rights Supreme Court case. In G.G. v. Gloucester County School Board, No. 15-2056 (4th Cir. Apr. 19, 2016), the Fourth Circuit ruled in favor of a transgender high school student, represented by the ACLU, who filed an action seeking the right of the boy to use the boys’ restrooms at his school. While a final determination of the case on the merits is still pending, the Fourth Circuit in the April 19 decision held that the district court in that case had committed reversible error in failing to accord appropriate (Auer) deference to the Department of Education’s interpretation of Title IX as providing the right of transgender students to use bathrooms that conform with their gender identity. In particular, the Fourth Circuit emphasized a January 7, 2015, opinion letter from the Department of Education’s Office for Civil Rights explaining that “[w]hen a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.”
The Supreme Court recent denied cert. in a case in which petitioners had asked the Court to overrule Auer deference for agency interpretations of the agency’s own regulations. Josh Gerstein, “SCOTUS Won’t Review Precedent Key to Transgender Ruling,” Politico, May 16, 2016. The denial of cert. bodes well for the federal government and other parties challenging the legality of HB 2 in the above cases because the federal agencies have interpreted the regulations at issue in these cases as protecting transgender individuals’ rights to access bathrooms, locker rooms, and changing rooms that match their gender identity.
Finally, another case involving the rights of a transgender student may follow on the heels of the G.G. case in the Fourth Circuit, depending on the response of the Horry County Schools, in South Carolina, to a demand letter sent by the Transgender Law Center asserting the rights of a transgender high school boy to use the boys’ bathroom at his school. The Law Center threatened legal action after the boy was suspended for using the boys’ room, although he had previously been allowed to use the boys’ restroom without incident. Brad Dickerson, “Transgender Legal Group Warns of Possible Legal Action Against Horry County Schools,” WMBF News, Apr. 22, 2016.
As each of these cases makes its way through the courts in the Fourth Circuit, the rest of the nation should take heed, as the issue of transgender persons’ rights to access the bathrooms, locker rooms, and other facilities that match their gender identity becomes increasingly contested, whether through legislation targeting transgender people or through actions such as the suspension or prosecution of transgender students and adults for using the facilities that match their gender identity. Very few courts have addressed the issue to date, but beyond the Fourth Circuit, guidance may be found through administrative guidance such as in the January 7, 2015, opinion letter from the Department of Education, and the May 13, 2016, guidance letter, to which the Fourth Circuit may well end up, and arguably should, according Auer deference.
Keywords: litigation, civil rights, transgender rights, ACLU
Nancy C. Marcus, LLM, SJD, is an assistant professor of law and founding constitutional law professor at Indiana Tech Law School. She is the chair of the LGBT Rights Subcommittee of the Section of Litigation Civil Rights Committee.