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Bathroom Bigots Lose in North Carolina, Once and For All


North Carolina just put a permanent end to its ongoing bathroom wars. Governor Roy Cooper (D), who campaigned on a promise to get H.B. 2, “off North Carolina’s books,” signed a consent decree Tuesday that ended the bill’s anti-transgender bathroom bigotry permanently.

Let’s recap the history of North Carolina and its obsession with who is peeing and through which body part. First, North Carolina enacted H.B. 2, dubbed the “bathroom bill.” It got lots of well-deserved bad press for its attempt to bar transgender people from using restrooms that coincided with their gender identities and restricted municipalities from enacting anti-discrimination laws. The 2016 bill was bigoted in intent, offensive in practice, and utterly impractical to enforce – which is why it was replaced after a year with H.B. 142.

H.B. 142 repealed the part of H.B. 2 that forced transgender people to use bathrooms that corresponded with their birth certificate genders in government buildings, public schools, and state colleges – which was certainly a good thing. However, it left restroom access in the hands of the state legislature instead of cities and counties – which means that state lawmakers could, at any time, simply decide to pass another bigoted bathroom law. It also prohibited municipalities from even enacting non-discrimination ordinances if those ordinances would protect groups, “not included in state law,” (read, LGBTQ people), until the year 2020.

Elections, litigation, and boycotts ensued. PayPal, Lionsgate, Ringo Starr, and the NBA headlined a long list of companies that pulled out of projects planned for North Carolina. Dozens of states and municipalities prohibited employee travel to North Carolina. Republican Governor Pat McCrory, who had been a driving force behind the bathroom bills, was voted out. All the while, North Carolina kept insisting that the consequences – even those that amounted to over $3 billion – were no big deal.

And now, the whole saga has come to a satisfying end, just in time for us to plan our August trips to OBX. The consent decree between Governor Cooper on behalf of North Carolina and transgender state employee Joaquín Carcaño as lead plaintiff (along with the ACLU and Lambda Legal as intervenors) ends the transgender portions of H.B. 142 now and forever. It says:

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, 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.

The outcome in this litigation is a testament to the power of a three-branch system of government; while the North Carolina legislature was hell-bent on drafting anti-transgender legislation, the governor bound the state to the terms of the consent order sanctioned by the judiciary. This outcome is markedly different than it would have been had Carcaño simply won his lawsuit. Such a win might have been appealed, and depending on its terms, might have been narrowly construed for future cases. By contrast, the consent order is not a ruling against North Carolina, but rather, an agreement entered into with the state as a willing participant. Its terms are potentially broader than a simple win would have been, and dictate rules governing the state’s implementation of H.B. 142 not only for Carcaño, but for all people.

[image via Mark Makela/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos