BY JEFF TAYLOR | North Carolina Gov. Pat McCrory filed a notice of dismissal on Friday, Sept. 16 of a lawsuit against the federal government asking for clarification on the state’s House Bill 2 (HB2) law. The Department of Justice has filed a similar case against them, calling the provision limiting transgender bathroom use “impermeably discriminatory,” while calling on “a statewide bar on its enforcement.” In particular, they said the law “constitutes a pattern or practice of employment discrimination on the basis of sex in violations of Title VII of the civil rights act of 1964.”
The DOJ wanted the governor’s lawsuit dismissed in order to streamline the process, as both cases were dealing with the same issue, with the same issues raised by the state in both courts. They further argue that McCrory’s lawyers “rushed to the courthouse” because they knew the DOJ planned to sue the state.
“In light of the fact that plaintiffs’ claims in this action have now been asserted as counterclaims in the Middle District Case, the substantial costs to the State of litigating similar legal issues in two different judicial districts, and the interests of judicial economy and efficiency, plaintiffs feel compelled to file this notice of voluntary dismissal without prejudice,” the notice of dismissal reads.
The state is also facing a lawsuit filed by the American Civil Liberties Union, Equality North Carolina and Lambda Legal on behalf of Lambda Legal, the American Civil Liberties Union, the ACLU of North Carolina and the law firm of Jenner & Block are challenging the law on behalf of six LGBTQ North Carolinians and members of the ACLU of North Carolina and Equality North Carolina. On Aug. 21, Judge Thomas Schroeder ruled in favor of a preliminary injunction halting implementation of the bathroom and locker room provision of HB2 at the University of North Carolina system and the three transgender individuals who filed the lawsuit.
Their lawyers have since appealed this decision, asking that the injunction against implementation of the transgender public accommodations restrictions be extended to all North Carolinians, not just the plaintiffs. This prompted U.S. Magistrate Judge Joi Elizabeth Peake to delay the federal court date from Nov. 14 to May 2017.
The U.S. Supreme Court is likely to hear a case this fall that would decide whether laws like HB2 are legal, having temporarily blocked a transgender teenager, Gavin Grimm, from using the boys’ bathroom at his high school, giving local officials time to file a full appeal of the Fourth U.S. Circuit Court of Appeals in Richmond, Va. ruling that sided with the Grimm.
Even before the Charlotte City Council voted to include LGBTQ protections in their non-discrimination ordinance in a 7-4 vote in February, there was word that the North Carolina General Assembly would act to overrule it. Gov. Pat McCrory said in an email to two council members who opposed the ordinance, Ed Driggs and Kenny Smith, that if it were to pass it would, “most likely cause immediate state legislative intervention.”
That intervention did indeed come, with a vengeance.
While Gov. McCrory’s main stated objection was to the provision allowing transgender individuals to use the bathrooms and locker rooms consistent with their gender identity, the bill passed by the Republican controlled NCGA not only prevented that from happening in government owned buildings – leaving private businesses to set their own policies on the issue – it invalidated all non-discrimination ordinance passed by cities and municipalities, took away the right to sue for discrimination in state court (since reinstated), and capped the state’s minimum wage at $7.25 an hour.
HB2 has since cost North Carolina millions after companies, entertainers, cities and other states began to boycott. Some of the bigger loses include PayPal, Deutsche Bank, the 2017 NBA All-Star Game, and NCAA and ACC championship games.
There are also the mounting legal fees. Attorney General Roy Cooper, who is challenging McCrory in a tight gubernatorial race, has refused to defend the law. Both Cooper and McCrory are campaigning heavily on the issue.
A recent estimate by Wired calculated total losses to the state at just over $395 million. A report by The Williams Institute, a think tank at the University of California, Los Angeles School of Law, estimates that HB2 could cost the state $5 billion a year.
McCrory’s oft returned to talking point when these boycotts have occurred is that the issue is now up to the courts and so there is little need to consider it. Yet he would like the Charlotte City Council to repeal their non-discrimination ordinance, which the state already rendered null and void.
“Economic Impact of HB2” showed up on the city council’s agenda in May, but was then quickly removed. The council voted not to place a vote to repeal the non-discrimination ordinance on a future agenda after council member Kenny Smith, who twice voted against the ordinance, brought the issue back up at the end of the meeting.
Gov. McCrory’s office confirmed on Friday, Sept. 16 that he would call a special session to repeal HB2 if there was enough support from lawmakers and if Charlotte first repealed its ordinance.
Charlotte Mayor Roberts announced that they would not vote on a repeal of the nondiscrimination ordinance, saying in a statement, “The City of Charlotte continues its commitment to be a welcoming community that honors and respects all people. We appreciate the state wanting to find a solution to the challenges we are facing and applaud the governor for recognizing the state should overturn HB2, which the state can do at any time without any action from the City of Charlotte. We urge the state to take action as soon as possible and encourage continued dialogue with the broader community.”
