Bench Memos

Law & the Courts

North Carolina Officials File Complaints for Declaratory Judgment

This morning, North Carolina governor Pat McCrory and state secretary of public safety Frank Perry filed a complaint for declaratory judgment against the Obama administration’s baseless and ill-advised efforts to block North Carolina’s implementation of H.B. 2. This afternoon, Phil Berger, the president pro tem of the state senate, and Tim Moore, the speaker of the state house of representative, filed their own (much more extensive) complaint. Both complaints were filed in the same federal court (Eastern District of North Carolina, Western Division) and will presumably be consolidated. 

The remainder of this post (including below the fold) is the introduction from the Berger/Moore complaint:

1. When people find themselves in the intimate settings of public bathrooms, locker rooms, or showers, they expect to encounter only other people of the same biological sex. Until very recently, that simple expectation of bodily privacy would have been taken for granted. Yet when North Carolina sought to protect that expectation in law—by enacting the “Public Facilities Privacy and Security Act” (the “Act”), commonly known as HB2—a torrent of vicious criticism was unleashed against the State, its officials, and its citizens. The abuse has now reached its apex with the unprecedented threats by the United States Department of Justice (“Department”), the defendant here. Last week, the Department sent letters to North Carolina public officials and agencies informing them that, by complying with the Act, they were engaging in a “pattern or practice” of discrimination in violation of three federal civil rights laws. They were bluntly ordered to repudiate the Act within five calendar days—that is, by today—or else face enforcement actions that would drastically impact North Carolina, including the potentially catastrophic elimination of more than two billion dollars in federal funding. Instead of meekly complying, plaintiffs—the leaders of both chambers of the North Carolina General Assembly—have filed this declaratory judgment action.

2. A declaratory judgment is urgently needed for two basic reasons. First, it is needed to vindicate the sovereign right of North Carolina’s citizens to decide how best to protect their own bodily privacy and dignity in intimate public settings. Second, it is needed to instruct the Department in no uncertain terms that its overbearing abuse of executive authority flouts our Constitution’s limitations on federal power and tramples on the sovereign dignity of the States and their citizens.

3. The ideological extremity—and utter unworkability—of the Department’s position on the issues in this case is astonishing. Unlike the people of North Carolina, the Department believes that the only valid approach to issues of gender dysphoria is to allow anyone to use any communal public bathroom, locker room, or shower based solely on that person’s self-declared “gender identity.” Never mind that no federal statute or regulation remotely requires the Department’s policy. Never mind that the Department’s policy will inevitably lead to women and girls in public changing facilities encountering individuals who, whatever their gender identity, still have fully functional male genitals. Never mind that the Department’s policy, on its face, demands that North Carolina allow biologically male prison inmates who identify as females to take showers with biologically female inmates—which, besides being absurd and dangerous, also violates the Department’s own federal prison regulations. Apparently, the Department believes that these obvious social costs are outweighed by the policy’s purported psychological benefits to persons of conflicted gender identity.

4. The people of North Carolina came to a different and far more sensible conclusion, one they enacted in the law at issue in this case. Despite being grossly mischaracterized in the media, the Act does not embody hostility towards those whose gender identity differs from their biological sex. To the contrary, the Act specifically allows a flexible system of single-occupancy facilities for persons who do not wish to use public facilities designated for their biological sex. The Act also leaves in place existing provisions allowing a person to obtain a sex-change operation, make a corresponding change to their birth certificate, and then use the public facilities consistent with their new anatomy. And the Act allows private businesses and other entities to determine their own bathroom policies—including, if they wish, policies closer to the Department’s views.

5. But the Act also reflects concern and compassion for the many North Carolina residents—especially girls and women—who do not wish to be in close proximity to persons with genitals characteristic of the opposite sex when using public restrooms, locker rooms, and showers. Those people reasonably believe that a policy allowing people of the opposite biological sex into those spaces would be an assault on their dignity, privacy, and safety, and an affront to the legitimate and longstanding privacy expectations of all North Carolinians. That is why, in publicly owned facilities, the Act simply requires that everyone—regardless of their “gender identity” use the facilities that correspond to their current anatomy.

6. In short, the Act is not, as it has been mischaracterized in the press, an “anti-transgender” law. It is, rather, a law that promotes both privacy and safety, while accommodating the legitimate interests of persons with conflicts between their biological and gender identities.

7. Nonetheless, in a series of highly publicized and unusual letters sent to North Carolina officials and agencies last week, the Department announced its “determination” that the Act, on its face, violates three federal civil rights statutes—Title VII, Title IX, and the Violence Against Women Act. As explained more fully elsewhere in this Complaint, the legal theories reflected in the Department’s determination letters are gravely flawed. For example, those theories all rest on the implausible premise that a privacy policy expressly designed to avoid making distinctions based on gender identity—by relying on anatomy instead—nonetheless “facially” discriminates on the basis of gender identity. That is nonsensical.

8. More important for present purposes, the Department’s “determination” that the Act violates these civil rights laws represents an all-out assault, not only on the sovereign right of North Carolinians to determine their own policies regarding public bath and shower facilities, but on the right of every other State and local government to do the same. It is a remarkable act of executive overreach, one that unnecessarily insists on political correctness at the expense of privacy and safety for other vulnerable citizens, especially women and girls.

9. Relatedly, the Department’s “determination” is also an assault on the whole system of single-sex bathrooms that, precisely because of privacy concerns, has been an accepted part of our Nation’s social compact since time out of mind. As a legal matter, if a biologically male individual can access a women’s bathroom based on a claim of “gender identity,” then any males can gain access on the same kind of claim, regardless of whether they “identify” as male or female: If discrimination based on “gender identity” is unlawful when the person seeking access identifies as a female, then it must be equally unlawful when that person identifies as a male. Furthermore, as a practical matter, if owners of public bathrooms, lockers, and shower facilities cannot exclude persons with male genitals from women’s bathrooms, soon enough the public will sensibly demand that single-sex bathrooms be abandoned altogether in favor of single-occupancy facilities.

10. To be sure, owners of private bath, locker, and shower facilities may decide to move in that direction on their own. But state taxpayers should not be forced to shoulder the enormous costs of such a transition at the behest of federal officials who offer nothing more than policy arguments masquerading as law. Nor should innocent state residents be forced to endure the assault on their privacy that policy would produce in the interim.

11. In sum, declaratory relief is urgently needed in this case. It is needed to protect the sovereignty of North Carolina’s people to set public policy on sensitive and controversial matters of bodily privacy and security. It is needed to shield North Carolina from an open-ended threat of a potentially catastrophic loss of federal funding based on nothing more than the Department’s novel and untested misreading of longstanding federal requirements. And it is needed to clarify that federal officials abuse their authority—and violate the Constitution—when they peremptorily order a sovereign State to abandon properly enacted legislation, as if North Carolina were nothing more than a tributary of the federal government.


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