By Thomas Hamilton
Christian Action League
July 26, 2019
RALEIGH – Federal Judge, Thomas D. Schroeder, approved a consent order on Tuesday that essentially grants transgender individuals the right to use the bathroom of their choice. The consent decree is the result of a lawsuit filed after the passage of HB 2 in 2016, commonly known as the “Bathroom Bill.”
After intense pressure from LGBTQ activist groups, celebrities, corporate entities, the NCAA, large corporations, and out-of-state government officials, the North Carolina General Assembly repealed HB 2 and replaced it with a compromise measure, HB 142.
HB 2 had required that restrooms, locker rooms, and showers should remain gender-specific, but HB 142 repealed that language and put matters back to the way they were before HB 2, which left the state without any explicit statewide policy about bathrooms and changing facilities.
In Carcaño v. Cooper and Berger, Joaquin Carcaño, an employee of the University of North Carolina at Chapel Hill and the lead plaintiff of the lawsuit, claimed that he couldn’t get clarity from his workplace as to whether he could use the bathroom of his choice.
In the consent decree, the state agrees that haggling over the legal question of HB 142, whether transgender individuals can or cannot use the restroom that matches their gender identity, would “result in the unnecessary expenditure of State resources, and is contrary to the best interests of the State of North Carolina.” Therefore, the consent decree, which is essentially an agreement between the plaintiffs and the state, ends the litigation.
The consent decree clarifies that nothing in HB 142 “can be construed by the Executive Branch Defendants [Office of the Governor, State Attorney General, NC Departments of Administration, Health and Human Services and Department of Transportation] 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.”
The consent decree reflects portions of Governor Cooper’s Executive Order # 24 of October 2017. Cooper’s executive order directed that, “State agencies, boards, commissions, and departments under the jurisdiction of the office of the Governor will not adopt policies or regulations barring, prohibiting, blocking, deterring, or impeding any individual who lawfully uses public facilities under their control or supervision, in accordance with that individual’s gender identity.”
While a new incoming Governor can always repeal the Governor’s executive order, a consent decree stands, unless the North Carolina General Assembly changes the law.
The Associated Press noted House Speaker Tim Moore and Senate President Pro-Tempore Phil Berger, “who intervened in the case as defendants, had urged the federal court to reject the consent decree. Their lawyers argued the plaintiffs were using the latest version of the consent decree to resurrect arguments already rejected by the court. “They also argued the agreement overstepped the proper role of the court because it ‘purports to bind North Carolina State officers and agencies, in perpetuity, to a temporary political settlement.’”
Carcaño told the media, “After so many years of managing the anxiety of HB 2 and fighting so hard, I am relieved that we finally have a court order to protect transgender people from being punished under these laws.”
HB 142, also prohibited local governments from adopting SOGI (sexual orientation and gender identity) ordinances until 2020. The consent decree did not affect this portion of the law. Carcaño added that this fact “remains devastating” for LGBTQ people and the “fight for full justice will continue.”
“What justice is there in being forced to change something as fundamental as separation of the sexes in the public’s most private settings, to accommodate individuals who are emotionally confused or experiencing conflict in their own view of themselves? It doesn’t help them, and it turns the world topsy-turvy for everyone else. It endangers the public when people of the opposite sex are in multi-occupancy restrooms,” said Rev. Mark Creech, executive director of the Christian Action League.
“This is madness, sheer madness!” added Creech. “Say I’m without compassion and I’m a bigot if you wish. You can even say I’m not being Christian. I couldn’t care less. It’s exhausting when the courts demand that we shouldn’t discriminate against people for simply being who they are, when it’s obvious they really don’t know who or what they are.”