No conclusion in HB2 successor case despite plaintiffs, governor’s proposed agreement

Lawmakers do not want Gov. Roy Cooper to agree to allow transgender individuals to use restrooms under executive branch control that match their gender identity.

Cooper and the plaintiffs who are challenging House Bill 142, which replaced House Bill 2, the anti-LGBTQ legislation that became known as “the bathroom bill,” have been trying to enter into a consent decree for almost a year. Judge Thomas Schroeder, a George W. Bush appointee, heard arguments about it Friday.

The agreement would specify that HB142 could not be used to ban people from using restrooms or facilities consistent with their gender identity that are under the executive branch’s control or supervision. It would also allow local governments to interpret their laws to protect individuals from sex or gender identity discrimination.

It essentially codifies an opinion that Schroeder already made in the case. Gene Schaerr, an attorney for the legislative defendants — who intervened in the HB2 and HB142 litigation — said they oppose the agreement, even though they’re not included in it. He cited concerns about ambiguity in the agreement language, issues with federalism and keeping the federal court involved in a state government power struggle and the negotiation process between Cooper and the plaintiffs.

“Our clients care a lot about federalism,” Schaerr said.

Schroeder entertained those concerns and expressed some of his own, particularly in some of the vague language in the agreement, although the plaintiffs and attorneys for Cooper made some of it more specific to try and appease him and the legislative defendants. Schaerr was unfazed by that attempt.

There was no conclusion in the case, something Schroeder strived to make happen given that it’s been going on for three years. He ordered all the parties to work together over the next two weeks and to submit a new consent decree by May 31. He said he hopes everyone can be on board with some type of agreement, but if lawmakers still can’t approve it or just have no position on it, he’ll take up their additional concerns at that time.

If an agreement was approved by the court, it would end the lawsuit, with the exception of some damage claims involving the University of North Carolina — but those can’t be resolved until after the U.S. Supreme Court takes up pending cases involving Title VII and IX issues.

Chase Strangio, ACLU staff attorney for the LGBT and HIV project, said after Friday’s hearing that it was clear lawmakers were not interested in protecting transgender individuals, who are most harmed by HB142.

“People really need protections right now in this state and across the country,” he said. “Obviously, we want people to pass through North Carolina, we want North Carolinians to feel safe and protected by the laws, and so that is really what this is trying to effectuate and resolve this incredibly long-running litigation.”

Strangio said they would keep fighting for transgender rights in the state.

Plaintiff Joaquin Carcaño said all he wants is for transgender people to be protected and to be able to navigate daily life without barriers.

“They continue to put up a fight,” he said of lawmakers.