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Settlement proposed in lawsuit over transgender bathroom access

Gov. Roy Cooper's administration has reached a proposed settlement of a federal lawsuit over transgender access to public bathrooms filed after state lawmakers passed House Bill 2 last year.

Posted Updated

By
Matthew Burns
and
Travis Fain
RALEIGH, N.C. — Gov. Roy Cooper's administration has reached a proposed settlement of a federal lawsuit over transgender access to public bathrooms that was filed after state lawmakers passed House Bill 2 last year.

The deal, which still must be approved by a federal judge, would allow transgender individuals to use the bathroom of their choice in public buildings controlled by administrative agencies, including most state offices in downtown Raleigh, highway rest stops and state parks and historic sites, without fear of arrest or prosecution.

Republican legislative leaders, who intervened in the dispute, aren't part of the proposed settlement. Neither is the University of North Carolina system, which was also a defendant in the federal lawsuit, but university administrators had already refused to enforce the bathroom provisions in House Bill 2.

"House Bill 2 has been repealed, and we believe the case should be dismissed," UNC system spokesman Josh Ellis said in an email to WRAL News. "Furthermore, we have a clear nondiscrimination policy and always strive to ensure our institutions are welcoming places for everyone.​"

The consent decree was negotiated between the plaintiffs and the Cooper administration, and Chris Brook, legal director for the state chapter of the American Civil Liberties Union, which represents the plaintiffs, said lawmakers and UNC system officials declined to sign on.

"We reached out to all parties but ultimately negotiated in earnest with the administration," Brook said.

Cooper also signed an executive order Wednesday forbidding state agencies from discriminating against people based on gender identity and extending the prohibition to state contractors and subcontractors.

Legislative lawyers are reviewing both the consent decree in the federal lawsuit and Cooper's executive order, according to a spokeswoman for Senate President Pro Tem Phil Berger. They offered no immediate comment Wednesday, but their response to the court is due Monday, according to Brook.

"It’s not enough to just say we won’t discriminate, we must show it," Cooper said in an online post. "After working with the business community and the LGBT advocacy community, I’m proud to act on our shared belief that people should not face discrimination or harassment because of who they are."

The North Carolina Values Coalition, which supported House Bill 2, said Wednesday evening that Cooper had "betrayed the people of North Carolina."

House Bill 2, which was adopted to head off a Charlotte ordinance that would have required businesses to allow transgender people to use the bathroom of their choice, also created a statewide nondiscrimination policy that excluded gay and transgender people and barred cities and counties from extending such protections to them. The bill also required that people use bathrooms in schools and other government buildings that match the gender listed on their birth certificates, and three transgender people filed suit, arguing that the new state law violated their equal protection rights under the Constitution.

The law brought national scorn on the state, with businesses scrapping planned expansions, organizations canceling conventions and the NBA, the Atlantic Coast Conference and other groups moving sporting events out of the state.

Cooper and lawmakers agreed in March to repeal House Bill 2 and replace it with legislation that continued to put the state in control of who could use which public bathroom, as well as block local nondiscrimination ordinances until the end of 2020. LGBTQ advocates were never happy with the compromise, contained in House Bill 142, complaining in part that it was intentionally vague about bathroom usage.

The proposed consent decree would permanently enjoin the state from using language from that bill "bar, prohibit, block, deter, or impede any transgender individuals from using public facilities" controlled by the executive branch of state government.

"HB 2 and [replacement legislation] HB 142 remain shameful and discriminatory attacks on LGBT people that should never have been signed into law, but under this proposed consent decree, North Carolina would finally affirm the right of transgender people to use facilities that match their gender," Karen Anderson, executive director of the ACLU of North Carolina, said in a statement.

Tami Fitzgerald, executive director of the Values Coalition, said in a statement that Cooper and Attorney General Josh Stein were attempting "a massive power grab" by pushing "sweeping changes that only the Legislative Branch has the authority to enact."

Cooper's executive order reaffirms some of the protections for LGBT state workers put in place last year by former Gov. Pat McCrory, but it rescinds sections of McCrory's order dealing with bathroom access. Neither executive order extended to local governments or schools.

"It is important to note that some of the worst portions of the HB 2 compromise, HB 142, remain on the books and continue to cause real harm to LGBTQ North Carolinians every day," Matt Hirschy, interim executive director of advocacy group Equality North Carolina, said in a statement. "While the executive order issued today is a step in the right direction, the fact remains that a majority of LGBTQ North Carolinians lack protections in housing, employment and public accommodations."

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