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Consent Decree Echoes Gov. Cooper’s “Gender Identity” Bathroom Policy

The latest development in the ongoing legal saga over access to public bathrooms in North Carolina took place on Tuesday, when U.S. District Court Judge Thomas D. Schroeder declared that bathrooms and other “public facilities” under the authority of North Carolina’s Executive Branch are open to individuals based on “gender identity” instead of biological sex. Judge Schroeder’s Consent Judgment and Decree, filed on July 23, declares that Executive Branch agencies in North Carolina may not “prevent transgender people from lawfully using public facilities in accordance with their gender identity” and may not “prosecute an individual…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.” According to the Consent Decree, the settlement applies to public facilities under the authority of the “Executive Branch Defendants,” which include the Office of the Governor, the State Attorney General, and the N.C. Departments of Administration, Health & Human Services, and Transportation.

The Consent Decree essentially echoes portions of an Executive Order issued by Governor Roy Cooper in October 2017, which directs, “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 the Consent Decree contains provisions that are similar to Cooper’s Executive Order, it is significant, because the legal settlement may have a longer “shelf life.” A future governor could repeal Cooper’s Executive Order, but the Consent Decree would remain in effect, unless the General Assembly enacts another law or a court rules in a contrary manner.

In any event, the decision has come about in a somewhat convoluted manner. In March 2016, the ACLU and other plaintiffs sued then-Governor Pat McCrory and the heads of several state agencies in an attempt to enjoin the enforcement of HB 2, sometimes referred to as North Carolina’s “bathroom bill.” Democrat Roy Cooper was elected Governor in November 2016, and, upon assuming office in January 2017, became a defendant in the lawsuit(s) against HB 2. In the midst of significant public debate and media attention, the N.C. General Assembly then passed House Bill 142, which was a “compromise bill” intended to “repeal and replace” HB 2. Cooper signed HB 142 into law in March 2017. Then, in October 2017, Cooper issued the Executive Order mentioned above, after making it abundantly clear that he opposed HB 2 and the substance of HB 142. He has also supported efforts to overturn North Carolina’s policy of regulating access to public bathrooms and other facilities based on biological sex.

Consequently, it comes as little surprise that Gov. Cooper ultimately sided with the ACLU and other plaintiffs in the case and supported the Consent Decree that was issued by Judge Schroeder on Tuesday.

It is important to note that North Carolina Senate President Pro Tempore Phil Berger and Speaker of the North Carolina House Tim Moore, who were allowed by the court to intervene as defendants in the case, objected to the Consent Decree.


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