CARCANO et al v. MCCRORY, et al
Filing
127
MEMORANDUM OPINION, ORDER AND PRELIMINARY INJUNCTION signed by JUDGE THOMAS D. SCHROEDER on 08/26/2016; that Plaintiffs' motion for preliminary injunction (Doc. 21 ) is GRANTED IN PART and DENIED IN PART as set out. The court reserves rulin g on Plaintiffs' motion for preliminary injunction on their Due Process claims. If Plaintiffs wish to submit additional briefing on these claims, they must do so no later than September 9, 2016. Any response briefs must be filed no later than September 23, 2016, and any reply briefs must be filed no later than October 7, 2016. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOAQUÍN CARCAÑO, et al.,
Plaintiffs,
v.
PATRICK MCCRORY, in his
official capacity as Governor
of North Carolina, et al.,
Defendants,
and
PHIL BERGER, in his official
capacity as President Pro
Tempore of the North Carolina
Senate; and TIM MOORE, in his
official capacity as Speaker
of the North Carolina House of
Representatives,
Intervenor-Defendants.
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1:16cv236
MEMORANDUM OPINION, ORDER
AND PRELIMINARY INJUNCTION
THOMAS D. SCHROEDER, District Judge.
This case is one of three related actions in this court
concerning North Carolina’s Public Facilities Privacy & Security
Act, 2016 N.C. Sess. Laws 3, commonly known as House Bill 2
(“HB2”).
Although Plaintiffs challenge multiple portions of HB2,
they presently seek preliminary relief only as to Part I, the socalled “bathroom bill” portion of the law, which requires public
agencies to ensure that multiple occupancy bathrooms, showers, and
other similar facilities are “designated for and only used by”
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 1 of 83
persons based on their “biological sex,” defined as the sex listed
on their birth certificate.
2016 N.C. Sess. Laws 3 §§ 1.2–1.3.
Plaintiffs include two transgender 1 students and one employee
(collectively, the “individual transgender Plaintiffs”) of the
University of North Carolina (“UNC”), as well as the American Civil
Liberties Union of North Carolina (“ACLU-NC”), which sues on behalf
of its transgender members.
(Doc. 9 ¶¶ 5–7, 10.)
The individual
transgender Plaintiffs (in their individual capacities) claim that
Part I violates Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681 et seq. (“Title IX”).
(Doc. 9 ¶¶ 235–43.)
In
addition, the individual transgender Plaintiffs and ACLU-NC claim
that Part I violates the Equal Protection and Due Process Clauses
of the Fourteenth Amendment to the United States Constitution. 2
1
Transgender individuals are persons who do not identify with their
birth sex, which is typically determined on the basis of external
genitalia. (Doc. 22-1 ¶¶ 12, 14; see also Doc. 9 ¶ 26.) According to
the latest edition of the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders, some transgender individuals
suffer from a condition called gender dysphoria, which occurs when the
“marked incongruence between one’s experienced/expressed gender and
assigned gender” is associated with “clinically significant distress or
impairment in social, occupational, or other important areas of
functioning.” (Doc. 22-5 ¶¶ 12–13.) In other words, gender dysphoria
occurs when transgender individuals experience emotional, psychological,
or social distress because “their deeply felt, core identification and
self-image as a particular gender does not align” with their birth sex.
(See Doc. 22-1 ¶ 19.) For purposes of the present motion, the court
accepts
Plaintiffs’
unrebutted
evidence
that
some
transgender
individuals form their gender identity misalignment at a young age and
exhibit distinct “brain structure, connectivity, and function” that does
not match their birth sex. (Id. ¶¶ 18, 22.)
2
After the preliminary injunction hearing, ACLU-NC moved to file a
second amended complaint to allege a Title IX representational claim.
2
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 2 of 83
(Id. ¶¶ 186–200, 220–34.)
It is important to note what is (and is not) in dispute.
All
parties agree that sex-segregated bathrooms, showers, and changing
facilities promote important State privacy interests, and neither
Plaintiffs nor the United States contests the convention. Further,
no party has indicated that the pre-HB2 legal regime posed a
significant privacy or safety threat to anyone in North Carolina,
transgender
or
otherwise.
The
parties
do
have
different
conceptions, of how North Carolina law generally operated before
March 2016, however, and whether “sex” includes gender identity.
Plaintiffs contend that time is of the essence, as HB2’s
impact will be most felt as educational institutions across the
State begin a new academic year.
As a result, the court has
endeavored to resolve Plaintiffs’ motion for preliminary relief as
quickly as possible.
Ultimately, the record reflects what counsel for Governor
McCrory candidly speculates was the status quo ante in North
Carolina in recent years: some transgender individuals have been
quietly using bathrooms and other facilities that match their
gender identity, without public awareness or incident.
(See Doc.
103 at 70 (speculating that, even if Part I remains in force, “some
(Doc. 116.) Briefing on that motion is incomplete, so the court only
considers Title IX relief for the individual transgender Plaintiffs at
this time.
3
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 3 of 83
transgender individuals will continue to use the bathroom that
they always used and nobody will know.”).)
occurred in part because of two factors.
suggests
that,
for
obvious
reasons,
This appears to have
First, the record
transgender
individuals
generally seek to avoid having their nude or partially nude bodies
exposed in bathrooms, showers, and other similar facilities.
Doc. 103 at 140.)
(See
Second, North Carolina’s decades-old laws
against indecent exposure, peeping, and trespass protected the
legitimate and significant State interests of privacy and safety.
After careful consideration of the limited record presented
thus far, 3 the court concludes that the individual transgender
Plaintiffs have made a clear showing that (1) they are likely to
succeed
on
their
claim
that
Part
I
violates
Title
IX,
as
interpreted by the United States Department of Education (“DOE”)
under the standard articulated by the Fourth Circuit; (2) they
will suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities weighs in favor of an injunction; and
3
In response to Plaintiffs’ motion for preliminary injunction, Governor
McCrory, Senator Burger, and Representative Moore requested a severalmonth delay. (Doc. 53 at 9–11; Doc. 61 at 27–29.) These Defendants
claimed the need for extensive factual discovery to adequately address
the issues presented in Plaintiffs’ motion. (Id.) They collectively
submitted only six exhibits, however, each of which consists of a short
news article or editorial. (See Docs. 55-1 through 55-6.) Moreover,
during a scheduling conference held on July 1, 2016, they indicated that
they did not intend to offer additional exhibits or live testimony and
that any preliminary injunction hearing could be limited to oral
argument. As a result, nearly the entire factual record in this case
is derived from materials submitted by Plaintiffs.
4
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 4 of 83
(4) an injunction is in the public interest.
Accordingly, the
court will enjoin UNC from enforcing Part I against the individual
transgender Plaintiffs until the court reaches a final decision on
the merits in this case.
Plaintiffs have not made a clear showing
they are likely to succeed on their Equal Protection claim, and
the court will reserve ruling on their Due Process claims pending
additional briefing from the parties.
It is important to emphasize that this injunction returns the
parties to the status quo ante as it existed in Title IX facilities
prior to Part I’s passage in March 2016.
On the current record,
there is no reason to believe that a return to the status quo ante
pending a trial on the merits will compromise the important State
interests asserted.
I.
BACKGROUND
Based on the record thus far, the court makes the following
findings for the limited purpose of evaluating Plaintiffs’ motion
for preliminary injunction.
A.
North Carolina Law Before 2016
Like most States, North Carolina has long enforced a variety
of public decency laws designed to protect citizens from exposing
their nude or partially nude bodies in the presence of members of
the opposite sex, as well as from being exposed to the nude or
partially nude bodies of members of the opposite sex.
With regard
to the former, North Carolina’s peeping statute, enacted in 1957,
5
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 5 of 83
makes it unlawful for any person to “peep secretly into any room
occupied
by
another
person,”
N.C.
Gen.
Stat.
§ 14-202(a),
including a bathroom or shower, and penalties are enhanced if the
offender does so for the purpose of sexual gratification, id. § 14202(d).
With regard to the latter, North Carolina’s indecent
exposure statute, enacted in 1971, makes it unlawful for any person
to “willfully expose the private parts of his or her person in any
public place and in the presence of any other person or persons.”
Id. § 14-190.9(a).
Traditionally, the indecent exposure statute
applied only to individuals who exposed themselves to members of
the opposite sex.
See State v. Fusco, 136 N.C. App. 268, 270, 523
S.E.2d 741, 742 (1999) (interpreting an earlier version of § 14190.9(a)).
In 2005, North Carolina removed the language that had
previously limited the statute’s application to situations in
which individuals exposed themselves in the presence of members of
the opposite sex.
2005 N.C. Sess. Laws 226 § 1 (modifying N.C.
Gen. Stat. § 14-190.9).
That same amendment, however, created an
exception for situations in which “same sex exposure” occurs in a
“place[] designated for a public purpose” and is “incidental to a
permitted activity.”
Id.
In addition to these statutes, public agencies in North
Carolina have also traditionally protected privacy through the use
of sex-segregated bathrooms, locker rooms, showers, and similar
facilities.
Although this form of sex discrimination has a long
6
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 6 of 83
history in the State and elsewhere, the parties offer differing
ideas
of
the
justification
for
the
practice.
Plaintiffs
acknowledge, as Defendants contend, that such segregation promotes
privacy and serves important government interests, particularly
with regard to minors.
(See, e.g., Doc. 103 at 15–21.)
Arguably,
segregating such facilities on the basis of sex fills gaps not
addressed by the peeping and indecent exposure statutes – for
example, a situation in which a man might inadvertently expose
himself to another while using a facility that is not partitioned.
It is also possible that sex-segregated facilities protect against
embarrassment from engaging in intimate bodily functions in the
immediate vicinity of the opposite sex, regardless of whether one’s
body is subject to view.
Whatever
facilities
compliance,
the
has
44 (2009).
traditionally
social
trespassing law.
justification,
mores,
the
segregation
been
enforced
and,
when
of
these
through
voluntary
necessary,
criminal
See In re S.M.S., 196 N.C. App. 170, 675 S.E.2d
For example, in S.M.S., a fifteen year old boy was
adjudicated delinquent of second degree trespass after he was
caught in the girls’ locker room at his high school.
71, 675 S.E.2d at 44–45.
Id. at 170–
Pursuant to N.C. Gen. Stat. § 14-159.13,
it is a second degree trespass to enter the premises of another
when reasonably conspicuous signs are posted to give the intruder
“notice not to enter the premises.”
In upholding the boy’s
7
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conviction, the North Carolina Court of Appeals concluded, “The
sign marked ‘Girl’s Locker Room’ was reasonably likely to give
respondent notice that he was not authorized to go into the girls’
locker room.”
S.M.S., 196 N.C. App. at 173, 675 S.E.2d at 46.
For most, the application of the peeping, indecent exposure,
and trespass laws to sex-segregated bathrooms and showers is
straightforward
and
uncontroversial.
however, it is not clearly so.
For
transgender
users,
While there are no reported cases
involving transgender users, at the preliminary injunction hearing
Governor
McCrory,
Senator
Berger,
and
Representative
Moore
indicated their assumption that this was so because transgender
users have traditionally been excluded (or excluded themselves)
from facilities that correspond with their gender identity.
The
evidence in the current record, however, suggests the opposite.
At least in more recent years, transgender individuals who dress
and otherwise present themselves in accordance with their gender
identity have generally been accommodated on a case-by-case basis,
with educational institutions generally permitting them to use
bathrooms and other facilities that correspond with their gender
identity unless particular circumstances weigh in favor of some
other form of accommodation.
For example, Plaintiffs submitted an affidavit from Monica
Walker, the Diversity Officer for public schools in Guilford
County, North Carolina, the State’s third largest school district,
8
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 8 of 83
with over 72,000 students in 127 school campuses.
¶¶ 2–3.)
(Doc. 22-19
Over the last five years, Ms. Walker has developed a
protocol for accommodating transgender students as they undergo
the social transition from male to female, or vice versa.
¶¶ 8–11.)
(Id.
This protocol emphasizes the importance of developing
a “tailored” plan that addresses the unique needs and circumstances
of each case.
(See id. ¶ 11.)
Based on her experience with four
transgender students, Ms. Walker indicates that these students
typically
use
identity.
bathrooms
(Id.)
that
correspond
with
their
gender
Ms. Walker has not received any complaints about
this arrangement from students or parents, and although every
school in Guilford County has single occupancy bathrooms available
for
any
student
with
privacy
concerns,
requested such an accommodation.
because
all
multiple
occupancy
no
student
(Id. ¶¶ 13–16.)
bathrooms
in
has
ever
This may be
Guilford
County
schools have separate stalls or privacy partitions, such that
students are not exposed to nudity in bathrooms.
(See id.)
Although Ms. Walker has yet to deal with questions concerning
access to locker rooms, she is confident that the privacy interests
of
transgender
and
non-transgender
students
alike
could
be
accommodated through the same means used to accommodate any student
with body image or shyness issues.
(See id.)
In sum, Ms. Walker
reports that the practice of tailoring specific accommodations for
transgender students on a case-by-case basis in Guilford County
9
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has been “seamless.”
(Id. ¶ 12.)
And according to an amicus brief
filed by school administrators from nineteen States plus the
District of Columbia – including Durham County Schools in North
Carolina,
another
large
school
district
–
Guilford
County’s
experience is typical of many school districts from across the
country.
(See Doc. 71.)
This conclusion is also consistent with the experiences of
the individual transgender Plaintiffs in this action.
All three
submitted declarations stating that they used bathrooms, locker
rooms, and even dormitory facilities corresponding with their
gender identity beginning as early as 2014.
22-8 ¶ 19; Doc. 22-9 ¶¶ 15, 19–20.)
(Doc. 22-4 ¶ 15; Doc.
No one has reported any
incident or complaint from their classmates or the general public.
(See Doc. 22-4 ¶ 30; Doc. 22-8 ¶ 25; Doc. 22-9 ¶ 20.)
This evidence is admittedly anecdotal.
It is possible that
before Part I, some transgender individuals in North Carolina were
denied accommodations and completely excluded from facilities that
correspond with their gender identity due to privacy or safety
concerns.
Also, minors may have received different types of
accommodations than adults, and practical considerations may have
led to different arrangements for bathrooms as opposed to showers
and other facilities.
And, it may be that the practice of case-
by-case accommodation is a more recent phenomenon, such that other
norms prevailed for most of North Carolina’s history until the
10
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 10 of 83
last few years.
But Defendants have not offered any evidence
whatsoever on these points, despite having four months between the
filing of this lawsuit and the hearing on this motion to do so.
Indeed,
the
court
does
not
even
have
a
legislative
record
supporting the law to consider. 4
As a result, the court cannot say that the practices described
by Ms. Walker, the school administrators, and the individual
transgender Plaintiffs represent an aberration rather than the
prevailing norm in North Carolina, at least for the five or more
year period leading up to 2016.
Rather, on the current record, it
appears that some transgender individuals have been quietly using
facilities corresponding with their gender identity and that, in
recent
years,
State
educational
institutions
have
been
accommodating such students where possible.
B.
In
The Charlotte Ordinance and the State’s Response
November
2014,
the
Charlotte
City
Council
began
considering a proposal to modify that city’s non-discrimination
ordinances to prohibit discrimination on the basis of marital
status, familial status, sexual orientation, gender identity, and
4
Defendants have since filed transcripts of the legislative record in
a separate case. (Docs. 149-5 through 149-8 in case no. 1:16cv425.)
11
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 11 of 83
gender expression. 5
(Doc. 23-3 at 2.) 6
On March 2, 2015, the
proposed ordinance was amended to include the following language:
“Notwithstanding the forgoing [sic], this section shall not, with
regard to sex, sexual orientation, gender identity, and gender
expression,
apply
to
rest
changing facilities.”
rooms,
(Id.)
locker
rooms,
showers,
and
Shortly thereafter, the proposed
ordinance failed by a vote of six to five.
(Id.)
On February 22, 2016, the Charlotte City Council considered
a new proposal to revise its non-discrimination ordinances.
23-5 at 2–3.)
Like the prior proposal, the new proposal added
“marital
status,
identity,
[and]
characteristics.
(Doc.
familial
gender
status,
expression”
(Doc. 23-2 at 1.)
sexual
to
the
orientation,
list
of
gender
protected
Unlike the prior proposal,
however, the new proposal did not contain any exceptions for
bathrooms, showers, or other similar facilities.
6.)
(See id. at 1–
In addition, the new proposal repealed prior rules that
exempted
“[r]estrooms,
shower
rooms,
bathhouses
and
similar
facilities which are in their nature distinctly private” from
Charlotte’s prohibitions against sex discrimination.
(Id. at 5.)
5
Charlotte’s
existing
non-discrimination
ordinances
prohibited
discrimination on the basis of race, gender, religion, national origin,
ethnicity, age, disability, and sex. (See Doc. 23-2 at 1, 6.)
6
Not all of the exhibits in the record contain internal page numbers,
and many include cover pages that were not part of the original
documents. For clarity, all record citations in this opinion refer to
the pagination in the CM/ECF version of the document.
12
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The new proposal, which regulated places of public accommodation
and businesses seeking to contract with Charlotte (id. at 2–6),
passed by a vote of seven to four (Doc. 23-5 at 3) 7 and set an
effective date of April 1, 2016 (Doc. 23-2 at 6).
The Charlotte ordinance provoked a swift response from the
State.
Governor
McCrory
and
several
members
of
the
General
Assembly strongly condemned the ordinance, which they generally
characterized as an affront to both privacy and public safety, and
they indicated their desire to see a legislative response to
Charlotte’s actions.
(See, e.g., Doc. 23-7 at 2; Doc. 23-8 at 2.)
The General Assembly was not scheduled to reconvene until April
25, 2016, however, and despite his opposition to the Charlotte
ordinance, Governor McCrory declined to exercise his authority to
call a special legislative session.
23-18 at 4.)
(See Doc. 23-16 at 2–3; Doc.
As a result, the General Assembly only reconvened
after three-fifths of the members of the House of Representatives
requested a special session.
(Docs. 23-17 at 2.) 8
On March 23, 2016, the General Assembly convened for the
special session and moved quickly.
parties
have
offered
little
(See Doc. 23-19 at 2.)
information
on
the
The
legislative
7
All seven votes in favor of the ordinance were cast by Democrats, while
two Democrats and two Republicans voted against the ordinance.
(See
Doc. 23-5 at 4–8.)
8
The Governor may call special sessions of the General Assembly in
response to unexpected or emergency situations. (See Doc. 23-18 at 4.)
13
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 13 of 83
process, but
it
appears
that
members
of
the
House
Judiciary
Committee were given only a few minutes to read HB2 before voting
on whether to send the bill back to the House for a full debate.
(See id.)
That afternoon, the House passed HB2 by a vote of
eighty-four to twenty-five after three hours of debate.
21 at 3.)
(Doc. 23-
All Republicans and eleven of the thirty-six Democrats
present voted for the bill, while twenty-five Democrats voted
against it.
(Id.)
HB2 then passed with unanimous support in the
Senate after Democrats walked out in protest.
McCrory signed the bill into law later that day.
became effective immediately.
C.
(Id.)
(Id.)
Governor
The law
HB2 § 5.
HB2’s Effect on North Carolina Law
Despite sweeping rhetoric from both supporters and opponents,
a few basic contours of HB2 are apparent.
1.
First,
Nondiscrimination Standards Under State Law
HB2
modified
the
State’s
nondiscrimination
laws.
Previously, the State had prohibited discrimination on the basis
of race, religion, color, national origin, age, sex, and handicap.
See id. §§ 3.1.
Part III of HB2 modified this language to prohibit
discrimination on the basis of “biological sex,” rather than simply
“sex.”
Id. (modifying N.C. Gen. Stat. § 143-422.2).
It also
extended these nondiscrimination protections, which had previously
applied only to the State, to cover private employers and places
of public accommodation.
See id. §§ 3.1-3.3.
14
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Part III also eliminated State common-law causes of action
for
violations
of
non-discrimination
(modifying N.C. Gen. Stat. 143-422.3).
laws.
See
id.
§ 3.2
This appeared to eliminate
the State cause of action for wrongful termination in violation of
public policy, although it did not prevent North Carolinians from
filing actions under federal non-discrimination laws, whether in
State or federal court.
This provision has since been repealed.
2016 N.C. Sess. Laws 99 § 1(a).
2.
Preemption of Local Ordinances
Parts II and III of HB2 preempt all local ordinances that
conflict
with
the
new
Statewide
nondiscrimination
standards,
including the Charlotte ordinance that prompted HB2’s passage. 9
Specifically,
requirements
Part
for
II
public
preempts
local
to
contractors
requirements conflict with State law.
non-discrimination
extent
the
HB2 §§ 2.1–2.3.
that
such
Similarly,
Part III preempts local nondiscrimination ordinances for places of
public accommodation to the extent that such ordinances conflict
with State law.
Id. §§ 3.3.
Collectively, Parts II and III
effectively nullified the prohibitions in Charlotte’s ordinance
against discrimination on the basis of marital status, familial
status,
sexual
orientation,
gender
identity,
and
gender
9
Part II also preempted local minimum wage standards. HB2 §§ 2.1–2.3.
This portion of HB2 has not been challenged in these cases.
15
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 15 of 83
expression. 10
3.
Public Bathrooms and Changing Facilities
As discussed above, Parts II and III effectively nullified
the controversial portions of the Charlotte ordinance, including
its regulation of bathrooms, showers, and other similar facilities
among contractors and in places of public accommodation.
Part I
goes a step further, however, explicitly setting rules for the use
of similar facilities operated by State agencies.
Part I provides that all public agencies, including local
boards of public education, shall “require” that every “multiple
occupancy bathroom or changing facility” 11 be “designated for and
only used by persons based on their biological sex.” 12
1.3.
Id. §§ 1.2–
Part I defines “biological sex” as “[t]he physical condition
of being male or female, which is stated on a person’s birth
certificate.” 13
Id.
Although Part I allows public agencies to
10
These are apart from the law’s effect, if any, on the Charlotte
ordinance’s protections against discrimination on the basis of “gender,”
“ethnicity,” and “handicap.”
11
The statute defines a “multiple occupancy bathroom or changing
facility” as a “facility designed or designated to be used by more than
one person at a time where [persons] may be in various states of undress
in the presence of other persons.
A multiple occupancy bathroom or
changing facility may include, but is not limited to, a [restroom],
locker room, changing room, or shower room.” Id. §§ 1.2-1.3.
12
This rule is subject to various exceptions that are not pertinent
here.
For example, Part I does not apply when individuals enter
bathrooms for custodial or maintenance purposes, or to assist other
individuals in using the facility. See id. §§ 1.2–1.3.
13
Notwithstanding the reference to “the physical condition of being male
16
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provide separate, single occupancy facilities as an accommodation
for
individuals
who
are
uncomfortable
with
facility, the law does not require the option.
their
assigned
See id. (stating
that public agencies may provide “accommodations such as single
occupancy bathroom or changing facilities upon a person’s request
due to special circumstances” (emphasis added)).
Part
I
prohibits
agencies
from
accommodating
In addition,
individuals
by
permitting them to access multiple occupancy facilities that do
not match the sex listed on their birth certificates.
Id.
(“[I]n
no event shall [any] accommodation result in the public agency
allowing a person to use a multiple occupancy bathroom or changing
facility
designated
biological sex.”).
. . .
for
a
sex
other
than
the
person’s
Because the law is limited to State agencies,
there is no dispute that private businesses, places of public
accommodation, and other persons throughout the State remain free
to define “sex” and regulate bathroom and other facility usage as
or female,” all parties agree that the law defines “biological sex” as
the sex listed on the individuals’ current birth certificate. (See Doc.
22 at 6 (Plaintiffs, stating that Part I restricts access to facilities
“based on the gender marker on one’s birth certificate”); Doc. 50 at 15
(UNC, stating that Part I requires individuals to use bathrooms
corresponding with their “biological sex, as listed on their birth
certificates”); Doc. 55 at 1 (Governor McCrory, stating that Part I
“notes that [‘biological sex’] is ‘stated on a person’s birth
certificate’”); Doc. 61 at 6 (Senator Berger and Representative Moore:
“HB2 determines biological sex based on the person’s current birth
certificate.”).) Notably, the law’s reliance on birth certificates
necessarily contemplates that transgender individuals may use facilities
consistent with their gender identity - notwithstanding their birth sex
and regardless of whether they have had gender reassignment surgery as long as their current birth certificate has been changed to reflect
their gender identity, a practice permitted in some States.
17
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they please, subject to other applicable law.
At the hearing for this motion, the parties offered differing
interpretations of how Part I affects North Carolina law.
As
discussed below, UNC argues that, at least on its campuses, Part
I means only that public authorities must maintain signs on their
multiple occupancy bathrooms designated “men” or “women.”
Senator
Berger and Representative Moore suggested that Part I functions as
“a
directive”
to
public
policies” on bathroom use.
agencies
that
they
(Doc. 103 at 112.)
must
“implement
Ultimately, the
United States, Senator Berger, and Representative Moore all agree
that, at a minimum, Part I dictates how the trespassing statute
applies to transgender individuals’ use of bathrooms.
Before Part I became law, North Carolina had no prohibition
against public agencies determining on a case-by-case basis how
best to accommodate transgender individuals who wished to use
particular bathrooms, showers, or other similar facilities.
In
addition, transgender individuals who used facilities that did not
match the sex listed on their birth certificate could presumably
argue that they believed they had permission to enter facilities
that matched their gender identity; indeed, as discussed above, a
number of transgender students had actual permission from the
agencies with authority over the facilities in question.
Part I forecloses these possibilities.
Now, public agencies
may not provide any accommodation to transgender individuals other
18
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 18 of 83
than the provision of a separate, single-user facility – though
they are not required to do so.
Thus, unless the agency that
controls the facility in question openly defies the law, any person
who uses a covered facility that does not align with his or her
birth certificate commits a misdemeanor trespass.
Similarly,
unless school administrators like Ms. Walker wish to openly defy
the law, they cannot give students permission to enter facilities
that do not correspond with the sex on their birth certificates
and presumably must discipline or punish students who disobey this
directive.
D.
Procedural History
Almost immediately, HB2 sparked multiple overlapping federal
lawsuits.
and
the
On March 28, 2016, ACLU-NC, Equality North Carolina,
individual
transgender
Plaintiffs
filed
this
action
against Governor McCrory (in his official capacity), UNC, 14 and
Attorney General Roy Cooper, alleging that various parts of HB2
discriminate
against
individuals
on
the
transgender
status
transgender,
basis
in
of
gay,
sex,
violation
of
lesbian,
sexual
Title
and
bisexual
orientation,
IX
and
the
and
Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
14
Plaintiffs named UNC, the UNC Board of Governors, and W. Louis
Bissette, Jr., in his official capacity as Chairman of the UNC Board of
Governors, as Defendants. For convenience and clarity, the court refers
to these and other related entities collectively as “UNC,” except where
otherwise indicated.
19
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 19 of 83
(Doc. 1.) 15
On May 9, 2016, the United States filed a separate action
against the State, Governor McCrory (in his official capacity),
the North Carolina Department of Public Safety (“NCDPS”), and UNC,
seeking a declaration that compliance with Part I constitutes sex
discrimination in violation of Title IX, the Violence Against Women
Reauthorization Act of 2013, 42 U.S.C. § 13925(b)(13) (“VAWA”),
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”).
(Doc. 1 in case no. 1:16cv425 (the “425
case”).)
That same day, State officials filed two separate declaratory
judgment actions in the United States District Court for the
Eastern District of North Carolina.
Governor McCrory and Frank
Perry, Secretary of NCDPS, filed an action in their official
capacities
against
the
United
States
and
the
United
States
Department of Justice (“DOJ”), seeking a declaration that HB2 does
not violate Title VII or VAWA (case no. 5:16cv238 (the “238
case”)).
Meanwhile, Senator Berger and Representative Moore filed
a separate lawsuit against DOJ on behalf of the General Assembly,
seeking a declaration that HB2 does not violate Title VII, Title
IX, or VAWA, as well as declarations that DOJ had violated both
the
Administrative
Procedure
Act
and
various
constitutional
15
Plaintiffs dropped Equality North Carolina and Attorney General Cooper
in their first amended complaint on April 21, 2016. (Doc. 9.)
20
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 20 of 83
provisions (case no. 5:16cv240 (the “240 case”)).
Finally, on May
10, 2016, an organization called North Carolinians for Privacy
filed its own action in support of HB2 in the Eastern District,
seeking declaratory and injunctive relief against DOJ and DOE
related to Title IX, VAWA, the Administrative Procedure Act, and
the Religious Freedom Restoration Act (case no. 5:16cv245 (the
“245 case”)).
The 240 and 245 cases were subsequently transferred to this
court and renumbered 1:16cv844 and 1:16cv845, respectively.
court
also
granted
Senator
Berger
and
Representative
This
Moore’s
motion to intervene permissively in both this action (Doc. 44) and
the 425 case (Doc. 64 in the 425 case).
Berger
and
Representative
Moore
As a result, Senator
dismissed
their
separate
declaratory action as duplicative of the claims and defenses
presented
in
the
236
and
425
cases,
(Doc.
33
in
case
no.
1:16cv844), leaving three HB2 cases pending before this court.
The 238 case remains pending in the Eastern District.
In the midst of all of this procedural fencing, Plaintiffs
filed the instant motion for preliminary injunction on May 16,
2016.
(Doc. 21.)
The motion was fully briefed as of June 27,
2016 (see Doc. 73), and the court began discussions with the
parties regarding an appropriate schedule for a hearing on and
consideration of this motion.
However, on July 5, 2016 – two
months after filing its complaint and over three months after the
21
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 21 of 83
passage of HB2 16 – the United States filed its own motion for
preliminary injunction in the 425 case.
(Doc. 73 in the 425 case.)
The United States’ motion would not be fully briefed until midAugust
2016,
and
in
light
of
the
Defendants’
request
for
preliminary discovery, consolidation of United States’ motion with
Plaintiffs’ motion would likely delay a hearing on the present
motion until at least September 2016.
As a result, despite the court’s strong preference to avoid
piecemeal litigation of the HB2 cases, the court held a hearing on
Plaintiffs’ motion on August 1, 2016, and the court permitted the
United States to participate in light of the fact that the 425
case also contains a Title IX claim. 17
The motion is now ready for
determination.
II.
ANALYSIS
Plaintiffs ask this court to enjoin Defendants from enforcing
Part I until the court issues a final ruling on the merits.
(Doc.
16
The United States also announced that it would not cut off Title IX
funding during the pendency of its lawsuit and asked this court for
relief from a provision in VAWA that requires it to suspend funding
forty-five days after filing suit. (See Doc. 53 in the 425 case.)
17
Defendants sought leave to conduct up to six months of discovery before
responding to the United States’ motion for preliminary injunction. (See
Docs. 53, 61.)
In response to these and other concerns, the court
exercised its authority under Federal Rule of Civil Procedure 65(a)(2)
to advance the trial in the United States’ action and consolidate it
with the hearing on the United States’ motion for preliminary injunction,
which is scheduled to begin November 14, 2016. (Doc. 104.)
22
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 22 of 83
22 at 44–45.)
Before reaching the merits of Plaintiffs’ motion,
however, the court must first address threshold defenses raised by
UNC. 18
A.
Justiciability and Ripeness
As UNC Board of Governors Chairman Louis Bissette has noted,
“[UNC] is in a difficult position,” in this case, “caught in the
middle between state and federal law.”
(Doc. 23-28 at 2.)
Neither
embracing nor repudiating Part I, UNC argues that while it intends
to comply with the law, it does not intend to enforce the law
because Part I contains no mechanism to do so.
UNC argues that
Part I therefore has essentially no effect on its campuses and
that this court should not consider the individual transgender
Plaintiffs’
reasons. 19
Title
IX
claim
for
jurisdictional
and
prudential
For the reasons that follow, the court disagrees.
“Federal courts are principally deciders of disputes, not
oracular
authorities.
We
address
particular
cases
or
18
UNC has also filed a motion to dismiss the claims against it. (Doc.
89.) The motion to dismiss raises similar issues, as well as additional
issues not addressed in the briefing on the present motion. (See Doc.
90.) The court will issue a separate ruling on the motion to dismiss
at a later date.
19
UNC also argues that it is immune from the individual transgender
Plaintiff’s constitutional claims and that Chairman Bissette is not a
proper party under Ex Parte Young, 209 U.S. 123 (1908).
Because
Plaintiffs have since moved to amend their complaint to drop Chairman
Bissette and substitute UNC President Margaret Spellings as a Defendant
(see Doc. 116-1 ¶¶ 11–12), and because the court will not grant relief
on their constitutional claims at this time, see infra Section II.B.1.b,
the court does not reach these issues.
23
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 23 of 83
controversies
opinion.”
and
may
not
arbitrate
abstract
differences
of
Doe v. Duling, 782 F.2d 1202, 1205 (4th Cir. 1986)
(citations
and
internal
quotation
marks
omitted).
This
requirement stems from Article III, Section 2 of the United States
Constitution
and
presents
both
jurisdictional
and
prudential
limits on the exercise of federal judicial power. Warth v. Seldin,
422 U.S. 490, 498–99 (1975).
plaintiff
complaining
about
As a jurisdictional matter, a
State
conduct
must
show
“some
threatened or actual injury resulting from the putatively illegal
action.”
Id. at 499 (quoting Linda R.S. v. Richard D., 410 U.S.
614, 617 (1973)).
For example, where the dispute concerns the
validity of a criminal statute, the challenger must show a credible
threat
of
prosecution
controversy.
in
order
to
establish
a
live
case
or
Duling, 782 F.2d at 1205–06.
Similarly, the prudential ripeness requirement is designed to
prevent
courts
disagreements
from
over
“entangling
administrative
themselves
policies”
in
abstract
until
“an
administrative decision has been formalized and its effects felt
in a concrete way by the challenging parties.”
Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732–33 (1998) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967).
A case is
ripe and fit for judicial decision when the “rule or action giving
rise to the controversy is final and not dependent upon future
uncertainties or intervening agency rulings.”
Franks v. Ross, 313
24
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 24 of 83
F.3d 184, 195 (4th Cir. 2002).
In determining whether a case is
ripe, the court must consider both “the fitness of the issues for
judicial decision” and the “hardship to the parties of withholding
court
consideration.”
Ohio
Forestry
Ass’n,
523
U.S.
at
733
(quoting Abbott Labs., 387 U.S. at 149).
Here, UNC points to numerous statements from UNC President
Margaret Spellings, including a guidance memorandum sent to the
chancellors of all UNC constituent institutions, that Part I “does
not
contain
provisions
concerning
enforcement”
and
that
the
university’s non-discrimination policies, which generally prohibit
discrimination on the basis of gender identity, “remain in effect.”
(See, e.g., Doc. 38-5 at 1–2.) The guidance memorandum also notes,
however, that UNC must “fulfill its obligations under the law
unless or until the court directs otherwise.”
(Id. at 2.)
UNC
therefore acknowledges that “University institutions must require
every multiple occupancy bathroom and changing facility to be
designated for and used only by persons based on their biological
sex.”
(Id. at 1 (emphasis added).)
President Spellings directed
constituent institutions to take three specific actions under the
law:
(1)
maintain
existing
single-sex
signage
on
multiple
occupancy bathrooms and other similar facilities, (2) provide
notice of HB2 to campus constituencies as appropriate, and (3)
share
information
bathrooms on campus.
about
the
locations
of
single
occupancy
(See id. at 1–2.)
25
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 25 of 83
Despite the assertion that UNC does not intend to “enforce”
Part
I,
UNC’s
pronouncements
are
justiciable case or controversy.
sufficient
to
establish
a
The university has repeatedly
indicated that it will – indeed, it must – comply with State law.
(Id. at 1–2.)
Although UNC has not changed the words and symbols
on its sex-segregated facilities, the meaning of those words and
symbols has changed as a result of Part I, and UNC has no legal
authority to tell its students or employees otherwise.
In light
of Part I, the sex-segregated signs deny permission to those whose
birth certificates fail to identify them as a match.
UNC can avoid
this result only by either (1) openly defying the law, which it
has no legal authority to do, or (2) ordering that all bathrooms,
showers, and other similar facilities on its campuses be designated
as single occupancy, gender-neutral facilities.
Understandably,
UNC has chosen to do neither.
As
a
result,
although
President
Spellings
promises
to
“investigate” instances in which individuals are excluded from
bathrooms “to determine whether there has been a violation of the
University nondiscrimination policy and applicable law” (Doc. 381 ¶ 15), this does not help UNC because it has not expressly given
any student or employee permission to the use bathrooms, showers,
and other facilities consistent with his or her gender identity.
To the contrary, UNC has explicitly acknowledged that Part I
“remains the law of the State” and that neither UNC nor its non26
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 26 of 83
discrimination policies has “independent power to change that
legal reality.”
(Doc. 23-27 at 2–3.)
Unless and until UNC openly
defies the law, the signs that UNC posts on its bathrooms, showers,
and other similar facilities render transgender individuals who
use facilities that match their gender identities trespassers,
thus exposing them to potential punishment (certainly by other
authorities, if not by UNC).
In addition, if the trespasser is a
student, he or she is subject to discipline under one of UNC’s
student codes of conduct, which generally prohibit students from
violating federal, State, or local laws.
(See, e.g., Doc. 67-8 at
3.)
Thus, contrary to UNC’s characterizations, this is not a case
in which an arcane criminal law lingers on the books for decades
with no threat of enforcement.
See, e.g., Duling, 782 F.2d at
1206 (finding no justiciable case or controversy surrounding a
fornication and cohabitation statute when there had been no arrests
or prosecutions pursuant to the law for several decades).
Nor is
this a case in which public agencies do nothing more than “stand
ready to perform their general duty to enforce laws.”
Instead,
UNC
currently
instructs
the
individual
plaintiffs that Part I is in effect on UNC’s campuses.
See id.
transgender
(See, e.g.,
Doc. 67-5 at 3 (memorandum from UNC Chancellor Carol Folt stating,
“The memo from UNC General Administration also confirms that the
law relating to public restrooms and changing facilities does apply
27
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 27 of 83
to the University.”).)
That UNC has not articulated plans for
administering a specific punishment for transgender individuals
who violate its policy does not undermine the existence of a
justiciable case or controversy.
See G.G. ex rel. Grimm v.
Gloucester Cty. Sch. Bd., 822 F.3d 709, 716–17 (4th Cir. 2016)
(evaluating the merits of a Title IX claim involving transgender
bathroom use without discussing whether the school board had
threatened the student with any specific punishment for disobeying
the policy), stay and recall of mandate granted, 136 S. Ct. 2442.
These
considerations
also
dictate
the
ripeness
analysis.
President Spellings has indicated that she does not intend to take
any further action, including promulgating any further guidelines
or regulations with regard to Part I, until after this lawsuit
concludes.
(Doc. 38-1 at ¶ 16.)
As a result, a delay will not
render this case more fit for judicial review.
Ass’n, 523 U.S. at 733.
See Ohio Forestry
In addition, for reasons discussed below,
UNC’s exclusion of the individual transgender Plaintiffs from sexsegregated facilities that match their gender identity causes them
substantial hardship each day the policy is in effect.
Section II.B.2.
B.
See infra
As a result, this case is prudentially ripe.
Preliminary Relief
In order to obtain a preliminary injunction, a party must
make a “clear showing” that (1) it is likely to succeed on the
merits; (2) it is likely to suffer irreparable harm in the absence
28
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 28 of 83
of preliminary relief; (3) the balance of equities tips in its
favor; and (4) an injunction is in the public interest.
Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 21 (2008).
All four
requirements must be satisfied in order for relief to be granted.
Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d
342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089
(2010).
A preliminary injunction is “an extraordinary remedy
involving the exercise of a very far-reaching power, which is to
be applied only in the limited circumstances which clearly demand
it.”
811
Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,
(4th
Cir.
omitted).
1991)
(citations
and
internal
quotation
marks
Plaintiffs must show more than a grave or serious
question for litigation; they must “clearly” demonstrate that they
are “likely” to succeed on the merits.
Real Truth About Obama,
575 F.3d at 346-47.
1.
Likelihood of Success on the Merits
a.
To
Title IX
establish
a
claim
under
Title
IX,
the
individual
transgender Plaintiffs must show that (1) they were excluded from
participation in an education program because of their sex; (2)
the
educational
institution
was
receiving
federal
financial
assistance at the time of their exclusion; and (3) the improper
discrimination caused them harm.
G.G., 822 F.3d at 718.
UNC and
its constituent institutions receive federal financial assistance
29
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 29 of 83
under Title IX.
(See Doc. 23-27 at 2.)
In addition, for the
reasons explained below, UNC’s enforcement of Part I has caused
medical and other harms to the individual transgender Plaintiffs.
See infra Section II.B.2. Thus, the primary question for the court
is whether the individual transgender Plaintiffs are likely to
show that Part I unlawfully excludes them from certain bathrooms,
showers, and other facilities on the basis of sex.
Title IX provides: “No person . . . shall, on the basis of
sex, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education program or
activity
receiving
§ 1681(a).
Federal
financial
assistance.”
20
U.S.C.
This prohibition against sex discrimination protects
employees as well as students.
N. Haven Bd. of Educ. v. Bell, 456
U.S. 512, 530 (1982).
As a result, covered institutions may not
“limit
the
any
advantage,
person
or
§ 106.31(b)(7);
in
enjoyment
opportunity”
see
also
on
the
id.
of
any
basis
right,
of
sex.
§ 106.31(b)(2)
privilege,
34
C.F.R.
(prohibiting
discrimination in the provision of “aid, benefits, or services”).
Access
to
bathrooms,
showers,
and
other
similar
facilities
qualifies as a “right, privilege, advantage, or opportunity” for
the purposes of Title IX.
“Title
IX
is
a
G.G., 822 F.3d at 718 n.4.
broadly
written
general
prohibition
on
discrimination, followed by specific, narrow exceptions to that
broad prohibition.”
Jackson v. Birmingham Bd. of Educ., 544 U.S.
30
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 30 of 83
167, 175 (2005).
Thus, “[n]ot all distinctions on the basis of
sex are impermissible under Title IX.”
G.G., 822 F.3d at 718.
For example, the statute itself contains an exception that permits
covered institutions to “maintain[] separate living facilities for
the different sexes.”
20 U.S.C. § 1686.
In addition, a DOE
regulation states that covered institutions “may provide separate
toilet, locker room, and shower facilities on the basis of sex,
but such facilities provided for students of one sex shall be
comparable to such facilities provided for students of the other
sex.”
34 C.F.R. § 106.33.
Until very recently, little to no explicit authority existed
regarding the application of Title IX and its related regulations
to transgender students and employees.
Around 2013, however, DOE
began taking the position that covered institutions must treat
transgender individuals consistent with their gender identity.
(See Doc. 23-29 at 3 (citing Letter from Anurima Bhargava, Chief,
U.S. Dep’t of Justice, and Arthur Zeidman, Director, U.S. Dep’t of
Educ. Office of Civil Rights, to Dr. Joel Shawn, Superintendent,
Arcadia
Unified
Sch.
Dist.
(July
24,
2013),
available
at
https://www.justice.gov/sites/default/files/crt/legacy/2013/07/2
6/arcadialetter.pdf).)
On April 19, 2016, the Fourth Circuit concluded that courts
must defer to DOE’s relatively recent position in the context of
sex-segregated bathrooms.
G.G., 822 F.3d at 723.
In G.G., a high
31
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 31 of 83
school sophomore in eastern Virginia transitioned from female to
male, living as a boy in all aspects of life.
Id. at 715.
School
officials initially supported G.G.’s transition and took steps to
ensure that teachers and staff treated the student as a boy.
School officials
also
gave
G.G.
permission
to
use
the
Id.
boys’
bathrooms, although they made no decision with regard to locker
rooms or showers because G.G. did not participate in physical
education.
Id. & n.2.
G.G. used the boys’ bathrooms without
incident for several weeks.
Id. at 715–16.
At some point,
however, parents and community members began contacting the local
school board to complain about G.G.’s use of the boys’ bathrooms.
Id. at 716.
In response, the school board implemented a policy
limiting access to sex-segregated bathrooms and locker rooms based
on “biological gender” and requiring its schools to provide “an
alternative appropriate private facility” to accommodate students
with “gender identity issues.” Id. The school board also mandated
a series of steps designed to improve privacy for all students,
including adding partitions and privacy strips in bathrooms and
constructing additional single occupancy bathrooms.
Id.
Shortly after the school board adopted its new policy, G.G.
requested an opinion letter from DOE regarding the application of
Title IX to transgender students.
dissenting in part).
See id. at 732 (Niemeyer, J.,
On January 7, 2015, DOE responded with an
opinion letter that states,
32
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 32 of 83
The Department’s Title IX regulations permit
schools to provide sex-segregated restrooms, locker
rooms, shower facilities, housing, athletic teams, and
single-sex classes under certain circumstances. When a
school elects to separate or treat students differently
on the basis of sex in those situations, a school
generally must treat transgender students consistent
with their gender identity.
(Doc. 23-29 (the “DOE opinion letter”).)
On June 11, 2015, G.G.
sued the school board, claiming that the policy of excluding
students
from
bathrooms
violated Title IX.
The
district
on
the
basis
of
“biological
gender”
G.G., 822 F.3d at 717.
court
dismissed
G.G.’s
Title
IX
claim,
concluding that the DOE opinion letter is not entitled to deference
under the doctrine announced in Auer v. Robbins, 519 U.S. 452
(1997).
See G.G., 822 F.3d at 717. 20
The district court concluded
that 34 C.F.R. § 106.33, which permits schools to “provide separate
toilet, locker room, and shower facilities on the basis of sex,”
unambiguously refers to a student’s “birth or biological sex.”
822 F.3d at 719.
The district court also reasoned that, even if
the meaning of the phrase “on the basis of sex” were ambiguous in
this
regulation,
then
DOE’s
interpretation
would
be
clearly
erroneous and inconsistent with the regulation because “‘on the
basis of sex’ means, at most, on the basis of sex and gender
20
Under Auer, an agency’s interpretation of its own ambiguous regulation
is “controlling unless plainly erroneous or inconsistent with the
regulation.” 519 U.S. at 461 (citations and internal quotation marks
omitted).
33
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 33 of 83
together, [so] it cannot mean on the basis of gender alone.”
The Fourth Circuit reversed.
Id. at 727.
Id.
The court first
concluded that the phrase “on the basis of sex” in § 106.33 is
ambiguous because the regulation “is silent as to how a school
should determine whether a transgender individual is a male or
female.”
Id. at 720.
The court then determined that DOE’s
interpretation, while “novel” and “perhaps not the intuitive one,”
is not clearly erroneous because a dictionary from 1971 defined
the word “sex” as encompassing “morphological, physiological, and
behavioral” characteristics.
Id. at 721–22. 21
Finally, the court
concluded that the DOE opinion letter reflects the agency’s fair
and considered judgment on policy formulation, rather than a
convenient litigating position.
Id. at 722–23.
As a result, the
court remanded with instructions for the district court to give
the DOE opinion letter “controlling weight” with regard to the
meaning of § 106.33.
On
remand,
the
Id. at 723, 727.
district
court
entered
a
preliminary
injunction requiring the school board to allow G.G. to use the
boys’ bathrooms.
G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.,
No. 4:15cv54, 2016 WL 3581852, at *1 (E.D. Va. June 23, 2016).
The Fourth Circuit denied the school board’s request to stay that
21
The court noted that another dictionary defined “sex” as “the sum of
those anatomical and physiological differences with reference to which
the male and female are distinguished.” Id. at 721. Neither of the
dictionaries cited by the majority included gender identity as a
component of “sex.” See id. at 721–22.
34
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 34 of 83
injunction pending appeal.
G.G. ex rel. Grimm v. Gloucester Cty.
Sch. Bd., No 16-1733, 2016 WL 3743189, at *2 (4th Cir. July 12,
2016).
However, on August 3, 2016 – two days after the hearing on
Plaintiffs’ motion in the present case – the Supreme Court stayed
the Fourth Circuit’s mandate and the district court’s preliminary
injunction until it could rule on the school board’s forthcoming
petition for a writ of certiorari.
Gloucester Cty. Sch. Bd. v.
G.G. ex rel. Grimm, 136 S. Ct. 2442 (2016).
Such intervention is
granted where a lower court “tenders a ruling out of harmony with
[the Supreme Court’s] prior decisions, or [raises] questions of
transcending public importance, or [presents] issues which would
likely induce [the] Court to grant certiorari.”
See Russo v.
Byrne, 409 U.S. 1219, 1221 (1972) (Douglas, J.).
In light of the foregoing, the fate of G.G. is uncertain.
But, despite the stay and recall of the mandate, the Supreme Court
did not vacate or reverse the Fourth Circuit’s decision. See G.G.,
136 S. Ct. at 2442.
Thus, while other courts may reach contrary
decisions, see Texas v. United States, No. 7:16cv54, 2016 WL
4426495, at *14–15, (N.D. Tex. Aug. 21, 2016) (adopting the view
advanced in Judge Niemeyer’s dissenting opinion from G.G.), 22 at
22
The court also concluded that DOE’s guidance violated the
Administrative Procedure Act, and the court preliminarily enjoined DOJ
from using or asserting DOE’s position on gender identity in any
litigation initiated after the entry of its order. Id. at *11–*14, 17.
Because Texas is a district court opinion from outside the Fourth
Circuit, however, and because the court’s order was issued after the
35
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 35 of 83
present G.G. remains the law in this circuit.
See United States
v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (“A decision of a
panel of this court becomes the law of the circuit and is binding
on other panels unless it is overruled by a subsequent en banc
opinion of this court or a superseding contrary decision of the
Supreme Court.”); Friel Prosthetics, Inc. v. Bank of America, No.
CIV.A.DKC 2004-3481, 2005 WL 348263, at *1 & n.4 (D. Md. Feb. 9,
2005) (noting that a stay of a Fourth Circuit mandate in a separate
case would not “prevent the Fourth Circuit decision from having
precedential value and binding authority” in the present case);
see also Abukar v. Ashcroft, No. 01-242, 2004 WL 741759, at *2–3
(D. Minn. Mar. 17, 2004) (assuming that an Eighth Circuit opinion
in a separate case retained its precedential value despite the
Eighth Circuit’s subsequent decision to recall and stay its own
mandate in light of impending Supreme Court review).
Consequently,
to
evaluate
the
individual
transgender
Plaintiffs’ Title IX claim, the court must undertake a two-part
analysis.
First, the court must determine whether Part I violates
Title IX’s general prohibition against sex discrimination.
U.S.C. § 1681(a).
prohibition
determine
Second, if Part I violates Title IX’s general
against
whether
See 20
sex
an
discrimination,
exception
to
that
the
court
general
must
then
prohibition
initiation of this case, this court remains bound by G.G. and the Texas
order has no direct effect on this litigation.
36
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 36 of 83
applies.
written
See Jackson, 544 U.S. at 175 (“Title IX is a broadly
general
prohibition
on
discrimination,
followed
specific, narrow exceptions to that broad prohibition.”).
by
The
only potentially applicable exception cited by the parties comes
from a DOE regulation that allows schools to “provide separate
toilet, locker room, and shower facilities on the basis of sex.”
34 C.F.R. § 106.33.
However, in light of G.G., this court must
give controlling weight to the DOE opinion letter, which states
that schools “generally must treat transgender students consistent
with their gender identity” (Doc. 23-29 at 3), when considering
the
scope
of
this
exception
during
the
second
stage
of
the
analysis.
Under this framework, the Title IX analysis in this case is
relatively straightforward.
multiple
occupancy
Part I requires schools to segregate
bathrooms,
facilities on the basis of sex.
provision
of
sex-segregated
showers,
and
other
HB2 § 1.2–1.3.
facilities
similar
Because the
necessarily
requires
schools to treat individuals differently depending on their sex,
Part I falls within Title IX’s general prohibition against sex
discrimination.
The only potentially applicable exception comes
from § 106.33, which permits sex-segregated bathrooms and other
facilities.
But G.G. and the DOE opinion letter teach that, for
the purposes of this regulation, a school generally must treat
students consistent with their gender identity.
(See 822 F.3d at
37
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 37 of 83
723; Doc. 23-29 at 3.)
treat
students
Part I, by contrast, requires schools to
consistent
with
regardless of gender identity.
their
birth
HB2 §§ 1.2–1.3.
certificates,
Thus, although
Part I is consistent with the DOE opinion letter when applied to
most students, it is inconsistent with the DOE opinion letter as
applied to the individual transgender Plaintiffs, whose birth
certificates do not align with their gender identity. As a result,
Part
I
does
not
qualify
for
the
regulatory
exception
-
as
interpreted by DOE - and therefore appears to violate Title IX
when applied to the individual transgender Plaintiffs.
Defendants raise a number of objections to the application of
G.G. in this case, but none is sufficient at this time.
Defendants first argue that the Fourth Circuit’s holding in
G.G. is limited to bathrooms and does not extend to showers or
other similar facilities.
True, G.G. concluded that “the [DOE’s]
interpretation of its own regulation, § 106.33, as it relates to
restroom access by transgender individuals, is entitled to Auer
deference and is to be accorded controlling weight.”
723.
822 F.3d at
Further, the court noted that because G.G. did not seek
access to other facilities, “[o]nly restroom use is at issue in
this case.”
Id. at 715 n. 2.
And as to the objections raised,
the court commented, “We doubt that G.G.'s use of the communal
restroom of his choice threatens the type of constitutional abuses
present in the cases cited by the dissent.”
Id. at 723 n.10.
38
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Consequently, the district court only ordered the school board to
allow G.G. to use boys’ bathrooms.
G.G., 2016 WL 3581852, at *1.
But the indispensable foundation of G.G.’s holding is that
DOE’s interpretation of “sex” in § 106.33, as outlined in the DOE
opinion letter, is entitled to controlling weight.
723.
822 F.3d at
As the dissent in G.G. aptly noted, “acceptance of [G.G’s]
argument would necessarily change the definition of ‘sex’ for
purposes of assigning separate living facilities, locker rooms,
and shower facilities as well.
All are based on ‘sex,’ a term
that must be construed uniformly throughout Title IX and its
implementing regulations.”
in part).
Id. at 734 (Niemeyer, J., dissenting
In fact, the majority also agreed with this point.
Id.
at 723 (“In many respects, we are in agreement with the dissent.
We agree that ‘sex’ should be construed uniformly throughout Title
IX and its implementing regulations.”).
the
DOE
opinion
controlling
weight
letter
–
–
which
explicitly
Moreover, the passage of
G.G.
requires
includes
“locker
be
accorded
rooms”
and
“shower facilities” among the “situations” in which students must
be treated consistent with their gender identity.
(Doc. 23-29 at
3.) 23
23
Indeed, DOE has continued to issue expanded guidance well after the
filing of this lawsuit and the 425 case against the State. DOE’s newest
guidance explicitly mandates transgender access to all facilities that
are consistent with their gender identity.
(E.g., Doc. 23-30 at 4
(“Restrooms and Locker Rooms. A school may provide separate facilities
on the basis of sex, but must allow transgender students access to such
39
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To be sure, the G.G. court did note that the bathrooms at the
Virginia school were separately partitioned.
822 F.3d at 716.
But it is difficult to find any articulation of how that fact was
important to the court’s reasoning.
Although showers and changing
rooms clearly present obvious practical concerns that differ from
bathrooms, both the logic and holding of G.G. make no distinction
between facilities.
The court made this point clear by noting
that in applying its analytical framework it would not weigh
“privacy interests or safety concerns – fundamentally questions of
policy” which it said was “a task committed to the agency, not the
Id. at 723-24. 24
courts.”
While district courts are often said to be the “front line
experimenters in the laboratories of difficult legal questions,”
Hively v. Ivy Tech Comm. Coll., South Bend, --- F.3d ---, 2016 WL
4039703, at *4 (7th Cir. 2016), they are bound to follow circuit
precedent.
To accept Defendants’ argument – which is more an
attack on G.G.’s reasoning than a legal distinction – would violate
facilities consistent with their gender identity.”).)
This guidance
does not include the qualifier “generally,” which was included in the
DOE opinion letter. (Id.) Plaintiffs contend that this document, which
was not available at the time of G.G., is also entitled to Auer deference.
(See Doc. 22 at 14.)
The Texas court, which was not bound by G.G.,
concluded that this guidance is not entitled to Auer deference. 2016
WL 4426495, at *15.
24 Nor does it appear that the court or DOE considered the potentially
significant costs associated with retrofitting some facilities to ensure
privacy.
40
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 40 of 83
that obligation.
Therefore, at this early stage on a motion for
preliminary relief pending trial, it is enough to say that G.G.
requires Title IX institutions in this circuit to generally treat
transgender
students
consistent
with
their
including in showers and changing rooms.
gender
identity,
(Doc. 23-29 at 3.)
Defendants do not deny that Part I bars Title IX institutions from
attempting to accommodate such students in any fashion, except in
the limited form of a separate facility that is optional in the
State’s discretion.
See HB2 §§ 1.2–1.3.
Thus, G.G. indicates
that the individual transgender Plaintiffs are likely to succeed
on the merits of their Title IX claim.
Even
Plaintiffs
accept
that
the
State’s
interests
are
legitimate and seem to acknowledge that there may be practical
limits to the application of DOE’s guidance, especially where
minors are involved.
counsel
for
the
(See Doc. 103 at 15–21.) 25
amici
school
administrators
At the hearing,
represented
that
public school showers and changing rooms - facilities in which
students are likely to be partially or fully nude – today often
contain partitions, dividers, and other mechanisms to protect
privacy similar to bathrooms.
(See Doc. 103 at 137–38.)
This
suggests that, as in G.G., other forms of accommodation might be
25 DOJ, however, argues that DOE’s guidance makes no such allowance and
that G.G.’s holding requires controlling weight across all facilities.
(Doc. 103 at 54-57.)
41
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available to protect privacy and safety concerns.
See G.G., 822
F.3d at 723 (agreeing that “‘an individual has a legitimate and
important interest in bodily privacy such that his or her nude or
partially nude body, genitalia, and other private parts’ are not
involuntarily exposed” and concluding that “[i]t is not apparent
to us, however, that the truth of these propositions undermines
the conclusion we reach” to grant DOE’s interpretation of its
regulations controlling weight). 26
Ultimately, the question of
determining the full scope of transgender users’ rights to these
more intimate facilities under DOE’s interpretation – as to which
the State has significant legitimate interests – is not before the
court.
For now, it suffices to say that Part I’s blanket ban that
forecloses any form of accommodation for transgender students
other than separate facilities likely violates Title IX under G.G.
Defendants also note that the school board policy in G.G. did
not include any criteria for determining the “biological gender”
of particular students.
See 822 F.3d at 721–22.
By contrast,
Part I includes a simple, objective criterion – the sex listed on
the
individual’s
birth
certificate
individual’s “biological sex.”
correct on this point.
–
for
HB2 §§ 1.2–1.3.
determining
an
Defendants are
But the holding of G.G. did not turn on
26
For example, Part I excludes some transgender users from showers and
changing rooms that match their gender identity even if such facilities
are fully partitioned or otherwise unoccupied.
42
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 42 of 83
any supposed ambiguity in the school board’s policy.
Instead,
G.G. rested on the Fourth Circuit’s determination that the DOE
opinion letter is entitled to controlling weight under Auer.
F.3d at 723.
822
The DOE opinion letter does not even remotely suggest
that schools may treat students inconsistent with their gender
identity so long as the school has clear criteria for determining
an individual’s “biological sex.”
Defendants
next
argue
that
G.G.
did
not
involve
any
constitutional challenges to DOE regulations or the DOE opinion
letter.
True, the Fourth Circuit noted the absence of such
challenges in G.G., see id. at 723–24, whereas Defendants did raise
such issues in their answer and counterclaims (see Doc. 54 ¶¶ 120–
25).
in
But Defendants have not raised any constitutional defenses
their
responses
to
the
individual
transgender
Plaintiffs’
motion for preliminary injunction, and Plaintiffs therefore have
not yet responded to these issues. 27
The court cannot ignore G.G.
and simply assume that Defendants will prevail on constitutional
defenses that they may or may not develop at some point in the
27
In fact, although Senator Berger and Representative Moore’s brief
incorporates some portions of their answer by reference, it does not
incorporate the constitutional claims or defenses to the Title IX claim.
(See Doc. 61 at 13 (referencing defenses to Plaintiffs’ Equal Protection
and Due Process claims).) At the hearing on Plaintiffs’ motion, the
legislators
first
raised
the
argument
that
enforcing
DOE’s
interpretation of “sex” would constitute a Spending Clause violation
under Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 15-16
(1981). (Doc. 103 at 81-85.) As Defendants have yet to develop this
defense, it does not rise to the level of undermining the individual
transgender Plaintiffs’ showing of a likelihood of success on the merits.
43
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 43 of 83
future.
See Native Ecosystems Council & All. for the Wild Rockies
v. U.S. Forest Serv., No. 4:11-cv-212, 2011 WL 4015662, at *10
n.10 (D. Idaho Sept. 9, 2011) (declining to consider claims not
raised in a party’s brief for the purposes of a preliminary
injunction but preserving those claims for the remainder of the
case); see also Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir.
2002) (contentions not raised in a party’s opening brief are
generally considered to be waived).
Of course, Defendants may
ultimately develop successful constitutional defenses at a later
stage of the proceedings.
Finally, Defendants argue that this case differs from G.G.
because that case involved no major complaints or safety concerns
from students.
Defendants are correct, though community members
certainly raised these kinds of objections.
See G.G., 822 F.3d at
715–16. But on this record, Defendants have not offered sufficient
evidence
to
distinguish
Plaintiffs’
factual
circumstances,
or
those pertaining to anyone else in North Carolina for that matter,
from those in G.G. 28
To the contrary, the current record indicates
that the individual transgender Plaintiffs used bathrooms and
28
Defendants did present two news articles describing men in Seattle and
Virginia who entered women’s bathrooms or showers. (Docs. 55-1, 55-52.)
Neither man claimed to be transgender; one was apparently protesting a
local ordinance, while the other was arrested for peeping. (See id.)
North Carolina’s peeping and indecent exposure statutes continue to
protect the privacy of citizens regardless of Part I, and there is no
indication that a sexual predator could successfully claim transgender
status as a defense against prosecution under these statutes.
44
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locker rooms corresponding with their gender identity without
complaint for far longer than G.G. used the boys’ bathrooms at his
school.
(Compare Doc. 22-4 ¶¶ 15, 30 (approximately five months),
and Doc. 22-8 ¶¶ 19, 25 (approximately eighteen months), and Doc.
22-9 ¶¶ 15, 19–20 (same), with G.G., 822 F.3d at 715–16 (seven
weeks).
bathroom,
Moreover, as noted above and like the situation in G.G.,
shower,
and
other
facilities
often
separately
partitioned to preserve privacy and safety concerns.
(See Doc.
103 at 138; Doc. 22-19 ¶ 14.)
are
Finally, the Fourth Circuit’s
analysis in G.G. did not rest on the specific circumstances of
that case or the wisdom of DOE’s position, but rather on the
deference owed to the DOE opinion letter.
Id. at 723-24 (“[T]he
weighing of privacy interests or safety concerns — fundamentally
questions of policy — is a task committed to the agency, not the
courts. . . . To the extent the dissent critiques the result we
reach today on policy grounds, we reply that, our Auer analysis
complete,
we
leave
policy
formulation
to
the
political
branches.”).
*
*
*
G.G. compels the conclusion that the individual transgender
Plaintiffs are likely to succeed on the merits of their Title IX
claim.
Part
I’s
wholesale
ban
on
access
to
facilities
is
inconsistent with DOE’s guidance on Title IX compliance under G.G.
and
precludes
educational
institutions
from
attempting
45
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 45 of 83
to
accommodate
particular
transgender
individuals
who
wish
such
accommodation in bathrooms and other facilities. 29
b.
Constitutional Claims
In addition to their Title IX claim, Plaintiffs also seek
access to sex-segregated facilities at public rest stops and other
entities not covered by Title IX.
As a result, despite granting
relief under Title IX, the court must also consider Plaintiffs’
constitutional claims.
The constitutional claims in this case
raise novel and difficult questions in a context underdeveloped in
the law.
presenting
As a practical matter, therefore, Plaintiffs’ task of
the
kind
of
“clear
showing”
necessary
to
justify
preliminary relief, Winter, 555 U.S. at 22, is even more difficult
in this case.
Thus, this court is more cautious to act where the
application of existing principles of law to new areas is uncertain
and novel, particularly in the context of a preliminary injunction.
See Capital Associated Indus. v. Cooper, 129 F. Supp. 3d 281, 288–
89 (M.D.N.C. 2015) (“Where, as in this case, ‘substantial issues
29
Plaintiffs argue in supplemental briefing that “broad relief”
equivalent to a facial ban of HB2 is necessary to ensure protection of
the individual transgender Plaintiffs’ rights. (Doc. at 13.) But there
is no class-wide claim presently pending, and ACLU-NC did not allege a
Title IX claim. In light of UNC’s insistence that it will not take any
further action in response to Part I, broader relief is not necessary
to ensure that the individual transgender Plaintiffs receive effective
preliminary relief. Cf. Nat’l Org. for Reform of Marijuana Laws (NORML)
v. Mullen, 608 F. Supp. 945, 964 (N.D. Cal. 1985) (ordering broad relief
on individual claims where the individual plaintiffs were at “significant
risk for repeated rights violations” because government actors could not
effectively “distinguish the parties from the nonparties”).
46
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 46 of 83
of constitutional dimensions’ are before the court, those issues
‘should be fully developed at trial in order to [e]nsure a proper
and just resolution.’” (quoting Wetzel v. Edwards, 635 F.2d 283,
291 (4th Cir. 1980))); see also Gantt v. Clemson Agr. Coll. of
S.C., 208 F. Supp. 416, 418 (W.D.S.C. 1962) (“On an application
for preliminary injunction, the court is not bound to decide
doubtful and difficult questions of law or disputed questions of
fact.”).
i.
Equal Protection
The Fourteenth Amendment provides that no State may “deny to
any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. However, this broad principle
“must coexist with the practical necessity that most legislation
classifies for one purpose or another, with resulting disadvantage
to various groups or persons.”
Romer v. Evans, 517 U.S. 620, 631
(1996). As a result, the Supreme Court has “attempted to reconcile
the principle with the reality” by prescribing different levels of
scrutiny depending on whether a law “targets a suspect class.”
Id. Laws that do not target a suspect class are subject to rational
basis
review,
and
courts
should
“uphold
the
legislative
classification so long as it bears a rational relation to some
legitimate end.”
Id.
By contrast, laws that target a suspect
class, such as race, are subject to strict scrutiny.
See City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
47
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It is well settled that classifications based on sex are
subject to intermediate scrutiny.
518 U.S. 515, 532–33 (1996).
See United States v. Virginia,
Under intermediate scrutiny, the
State must demonstrate that the challenged law serves “‘important
governmental
objectives
and
that
the
discriminatory
means
employed’ are ‘substantially related to the achievement of those
objectives.’”
Id. at 533 (quoting Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982)).
Unlike strict scrutiny, the
government is not required to show that the law is the “least
intrusive means of achieving the relevant government objective.”
United
States
v.
Staten,
666
F.3d
154,
159
(4th
Cir.
2011)
(citations and internal quotation marks omitted). “In other words,
the fit needs to be reasonable; a perfect fit is not required.”
Id. at 162.
Nevertheless, “[t]he burden of justification is
demanding and it rests entirely on the State.”
at 533.
Virginia, 518 U.S.
In addition, the justification must be “genuine, not
hypothesized or invented post hoc in response to litigation.”
Finally,
the
justification
generalizations
about
the
“must
different
preferences of males and females.”
not
rely
talents,
on
Id.
overbroad
capacities,
or
Id.
Here, Part I classifies citizens on the basis of “biological
sex” and requires that each sex use separate multiple occupancy
bathrooms, showers, and other similar facilities.
Because
Part
I
facially
classifies
and
HB2 §§ 1.2–1.3.
discriminates
among
48
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 48 of 83
citizens on the basis of sex, intermediate scrutiny applies. 30
See
Virginia, 518 U.S. at 532–33.
There is no question that the protection of bodily privacy is
an important government interest and that the State may promote
this interest by excluding members of the opposite sex from places
in which individuals are likely to engage in intimate bodily
functions.
See, e.g., Faulkner v. Jones, 10 F.3d 226, 232 (4th
Cir. 1993) (“The point is illustrated by society’s undisputed
approval of separate public rest rooms for men and women based on
privacy concerns.
The need for privacy justifies separation and
the differences between the genders demand a facility for each
gender that is different.”); Lee v. Downs, 641 F.2d 1117, 1119
(4th Cir. 1989) (“Most people, however, have a special sense of
privacy in their genitals, and involuntary exposure of them in the
presence of people of the other sex may be especially demeaning
and humiliating.”); see also Doe v. Luzerne Cty., 660 F.3d 169,
176–77
(3d
recognized
Cir.
“a
2011)
(observing
constitutionally
that
protected
several
circuits
privacy
have
interest
30
in
The parties have devoted substantial time and energy to arguments
regarding (1) whether transgender individuals qualify as a suspect class
for Equal Protection purposes, and (2) whether Plaintiffs have
established a sex stereotyping claim under the line of cases beginning
with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (construing Title
VII). As Plaintiffs acknowledge, however, success on either of these
theories in the context of their Equal Protection claim would result in
the court applying the same intermediate level of scrutiny applied to
laws that facially classify citizens on the basis of sex. (Doc. 103 at
35–36.) Thus, the court declines to consider these issues at this stage
because Part I facially classifies individuals on the basis of sex.
49
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[one’s] partially clothed body”); Sepulveda v. Ramirez, 967 F.2d
1413, 1416 (9th Cir. 2012) (stating that “[t]he right to bodily
privacy
is
fundamental”
and
noting
that
“common
sense”
and
“decency” protect a parolee’s right not to be observed by an
officer of the opposite sex while producing a urine sample); York
v. Story, 324 F.2d 450, 455 (9th Cir. 1963) (“The desire to shield
one’s unclothed figure from view of strangers, and particularly
strangers of the opposite sex, is impelled by elementary selfrespect and personal dignity.”).
strong with regard to minors.
This interest is particularly
See, e.g., Beard v. Whitmore Lake
Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course
have a significant privacy interest in their unclothed bodies.”);
Doe v. Renfrow, 631 F.2d 91, 92–93 (7th Cir. 1980) (stating that
it “does not take a constitutional scholar” to conclude that a
strip search invades a student’s privacy rights).
At the hearing
on this motion, Plaintiffs acknowledged that the practice of
segregating bathrooms and other similar facilities on the basis of
sex promotes this government interest.
All
parties
agree
that
bodily
(See Doc. 103 at 15–19.)
privacy
qualifies
as
an
important State interest and that sex-segregated facilities are
substantially
related
to
that
interest. 31
But
the
relevant
31
Despite this concession, many of Plaintiffs’ arguments in this case
would, if accepted and taken to their logical conclusion, suggest that
the time-honored practice of sex-segregated bathrooms and showers is
unconstitutional.
At the hearing on this motion, counsel speculated
50
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authorities
do
not
define
“sex”
or
explicitly
explain
which
differences between men and women give rise to the State’s interest
in separating the sexes for privacy purposes; generally, these
cases simply observe that individuals of one sex have a privacy
interest in being separated from “the other sex.”
641 F.2d at 1119.
See, e.g., Lee,
Not surprisingly, then, the parties disagree
about which definition of “sex” promotes the State’s interest in
bodily privacy.
Defendants contend that bodily privacy interests
arise from physiological differences between men and women, and
that sex should therefore be defined in terms of physiology for
the purposes of bathrooms, showers, and other similar facilities.
Plaintiffs, by contrast, implicitly contend that bodily privacy
interests arise from differences in gender identity, and that sex
should therefore be defined in terms of gender identity for the
purposes of these facilities.
To
support
their
position,
Plaintiffs
submitted
expert
declarations stating that, from a “medical perspective,” gender
identity
is
the
only
“appropriate”
distinguishing between males and females.
characteristic
for
(See, e.g., Doc. 22-1
that sex-segregated bathrooms are justified, if at all, (1) by virtue
of the long history of providing such facilities, (2) to express
society’s belief that “the two sexes, the two genders . . . should be
separated except in marriage,” and (3) because no one has bothered to
challenge the practice of providing sex-segregated facilities which,
while separate, tend to be roughly equal in quality. (See id. at 16–
21.)
51
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¶ 23.)
Defendants have indicated their strong disagreement with
this position, though they have not yet offered any evidence on
this point in this case. 32
But regardless of the characteristics
that distinguish men and women for “medical” purposes, Supreme
Court and Fourth Circuit precedent supports Defendants’ position
that physiological characteristics distinguish men and women for
the purposes of bodily privacy.
Although the Supreme Court has never had an occasion to
explicitly explain which differences between men and women justify
the decision to provide sex-segregated facilities, the Court has
generally assumed that the sexes are primarily defined by their
differing physiologies.
In Virginia, for example, the Court
rejected the notion that women were not suited for education at
the Virginia Military Institute (“VMI”).
See 518 U.S. at 540–46;
see also id. at 533 (stating that laws “must not rely on overbroad
generalizations
about
preferences
males
of
the
and
different
talent,
females.”).
Even
capacities,
while
or
rejecting
stereotypical assumptions about supposed “inherent differences”
between
men
and
women,
the
Court
acknowledged,
“Physical
differences between men and women . . . are enduring,” adding that
the “two sexes are not fungible.”
Id.
The Court then linked these
32
As with legislative history, however, Defendants recently offered
medical evidence in the 425 case. (See Docs. 149-9 through 149-12 in
the 425 case.)
52
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 52 of 83
physiological
differences
to
privacy
considerations,
adding,
“Admitting women to VMI would undoubtedly require alterations
necessary to afford members of each sex privacy from the other sex
in living arrangements, and to adjust aspects of the physical
training programs.”
Id. at 550 n.19.
Virginia is not the only Equal Protection case to distinguish
between the sexes on the basis of physiology.
In Tuan Anh Nguyen
v. Immigration and Naturalization Serv., 533 U.S. 53 (2001), the
Court upheld an Immigration and Naturalization Service (“INS”)
policy that imposed “a set of requirements on the children of
citizen fathers born abroad and out of wedlock to a noncitizen
mother that are not imposed under like circumstances when the
citizen parent is the mother.”
the
government’s
“use
Id. 59–60.
of
gender
The Court held that
specific
terms”
is
constitutionally permissible when the relevant law “takes into
account a biological difference” between men and women.
64.
Id. at
The Court rejected the argument that the INS policy reflected
stereotypes about the roles and capacities of mothers and fathers,
stating that “the difference does not result from some stereotype,
defined as a frame of mind resulting from irrational or uncritical
analysis.”
Id. at 68.
Instead, the Court found, “There is nothing
irrational or improper in the recognition that at the moment of
birth . . . the mother’s knowledge of the child and the fact of
parenthood have been established in a way not guaranteed in the
53
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case of the unwed father. This is not a stereotype.” Id. Finally,
the Court concluded:
To fail to acknowledge even our most basic
biological differences . . . risks making the guarantee
of equal protection superficial, and so disserving it.
Mechanistic classification of all our differences as
stereotypes
would
operate
to
obscure
those
misconceptions and prejudices that are real. The
distinction embodied in the statutory scheme here at
issue is not marked by misconception and prejudice, nor
does it show disrespect for either class. The difference
between men and women in relation to the birth process
is a real one, and the principle of equal protection
does not forbid Congress to address the problem at hand
in a manner specific to each gender.
Id. at 73.
The Court’s decisions in Virginia (1996) and Nguyen (2001)
are not merely relics of an earlier, less enlightened time when
courts did not have the benefit of modern medical science. Rather,
as recently as January 2016, the Fourth Circuit cited Virginia
approvingly
while
concluding
that
physiological
differences
justified treating men and women differently in some contexts.
See Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016).
In Bauer,
a male applicant “flunked out of the FBI Academy after falling a
single push-up short of the thirty required of male Trainees.”
Id. at 342.
The applicant sued, noting that his performance would
have qualified him under the different physical fitness standards
applied to female applicants.
Id.
The Fourth Circuit found that
different standards for men and women arose from the FBI’s efforts
to “normalize testing standards between men and women in order to
54
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 54 of 83
account for their innate physiological differences,” such that an
approximately equal number of men and women would pass the tests.
Id. at 343.
In light of this, the Fourth Circuit concluded that
the FBI’s policy was permissible because “equally fit men and women
demonstrate their fitness differently.” Id. at 351. In concluding
that the FBI could distinguish between men and women on the basis
of physiology, the court explained:
Men and women simply are not physiologically the
same for the purposes of physical fitness programs.
. . . The Court recognized [in Virginia] that, although
Virginia’s use of ‘generalizations about women’ could
not be used to exclude them from VMI, some differences
between the sexes were real, not perceived, and
therefore could require accommodations.
Id. at 350. 33
In
light
of
the
foregoing,
it
appears
that
the
privacy
interests that justify the State’s provision of sex-segregated
bathrooms,
showers,
physiological
and
differences
other
similar
between
differences in gender identity.
men
facilities
and
women,
arise
from
rather
than
See Virginia, 518 U.S. at 533;
Nguyen, 533 U.S. at 73; Bauer, 812 F.3d at 350.
The Fourth Circuit
has implicitly stated as much, albeit in dicta, noting:
When . . . a gender classification is justified by
acknowledged differences [between men and women],
identical facilities are not necessarily mandated.
Rather, the nature of the difference dictates the type
of facility permissible for each gender.
33
Bauer involved Title VII rather than the Equal Protection Clause. Id.
Nevertheless, the Fourth Circuit stated that the same principles “inform
[its] analysis” of both types of claims. Id.
55
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 55 of 83
The point is illustrated by society’s undisputed
approval of separate public rest rooms for men and women
based on privacy concerns.
The need for privacy
justifies separation and the differences between the
genders demand a facility for each that is different.
Therefore, any analysis of the nature of a specific
facility provided in response to a justified purpose,
must take into account the nature of the difference on
which the separation is based . . . .
Faulkner, 10 F.3d at 232.
In fact, even Plaintiffs’ counsel
acknowledged the State’s interest in, for example, ensuring that
“12-year-old girls who are not familiar with male anatomy” are not
exposed to male genitalia by “somebody older who’s showing that to
them, a mature adult.”
(Doc. 103 at 24–25.)
As a result, it
appears that the constitutionality of Part I depends on whether
the
law’s
use
substantially
of
birth
related
certificates
to
the
as
State’s
a
proxy
privacy
for
sex
interest
is
in
separating individuals with different physiologies.
There is little doubt that Part I is substantially related to
the State’s interest in segregating bathrooms, showers, and other
similar facilities on the basis of physiology.
allegations,
“The
gender
marker
on
a
By Plaintiffs’ own
birth
certificate
is
designated at the time of birth generally based upon the appearance
of external genitalia.”
(Doc. 9 ¶ 26; see also Doc. 22-1 ¶ 14.)
Plaintiffs contend that birth certificates are an “inaccurate
proxy
for
an
individual’s
anatomy”
because
some
transgender
individuals have birth certificates that do not reflect their
56
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 56 of 83
external physiology, either because (1) they were born in a State
that permits them to change the sex on their birth certificates
without undergoing sex reassignment surgery, or (2) they were born
in a State that does not permit them to change the sex on their
birth
certificates,
regardless
reassignment surgery.
assumes
(contrary
to
of
whether
(Doc. 22 at 32-33.)
the
evidence
in
they
undergo
sex
But even if the court
the
record)
that
no
transgender person possesses a birth certificate that accurately
reflects his or her external physiology, Part I would still be
substantially
related
to
the
State’s
interest
because,
by
Plaintiffs’ own estimate, only 0.3% of the national population is
transgender.
population,
(Doc. 23-37 at 2.)
there
is
no
For the remaining 99.7% of the
evidence
that
the
sex
listed
on
an
individual’s birth certificate reflects anything other than that
person’s external genitalia.
Without reducing the “reasonable
fit” requirement to a numerical comparison, it seems unlikely that
a
law
that
classifies
individuals
with
99.7%
insufficient to survive intermediate scrutiny.
accuracy
is
See Staten, 666
F.3d at 162 (“In other words, the fit needs to be reasonable; a
perfect fit is not required.”).
Finally, the privacy interests discussed above do not appear
to represent a post hoc rationalization for Part I.
See Virginia,
518 U.S. at 533 (requiring that a justification be “genuine, not
hypothesized or invented post hoc in response to litigation”).
57
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Plaintiffs
contend
that
Part
I
“effectively
seeks
to
define
transgender individuals out of existence and shut them out from
public life.” 34
(Doc. 22 at 35.)
As a preliminary matter, it is
hard to infer legislative intent based on the current record which,
as noted above, contains little information about the legislative
process leading to HB2’s passage.
contain
a
few
examples
of
The preliminary record does
objectionable
statements
by
some
legislators in media outlets, though these statements generally
express hostility toward “the liberal agenda” and the “homosexual
community” rather than transgender individuals.
23-7 at 2; Doc. 23-15 at 2.)
statements,
some
by
these
(See, e.g., Doc.
But the record also contains many
same
legislators
and
others
by
legislative leaders and Governor McCrory, reflecting an apparently
genuine concern for the privacy and safety of North Carolina’s
citizens.
(See, e.g., Doc. 23–7 at 2 (stating that the Charlotte
ordinance “has created a major public safety issue”); Doc. 23-15
at 2 (“The Charlotte ordinance just violates, to me, all basic
human principles of privacy and it just has so many unintended
consequences.”); Doc. 23–16 at 2 (“While special sessions are
costly, we cannot put a price tag on the safety of women and
children.”); id. at 3 (“We need to respect the privacy of women
34
It should go without saying that Part I, which regulates access to
public bathrooms, showers, and other similar facilities, neither defines
transgender individuals “out of existence” nor prevents them from
participating in public life.
58
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and children and men in a very private place, and that’s our
restrooms
and
locker
rooms.”).)
In
light
of
the
many
contemporaneous statements by State leaders regarding privacy and
the substantial relationship between Part I and the State’s privacy
interests, Plaintiffs have not clearly shown that privacy was an
afterthought or a pretext invented after the fact solely for
litigation purposes.
simply
from
the
Nor does the court infer improper motive
fact
that
transgender individuals. 35
Part
I
negatively
impacts
some
See Romer, 517 U.S. at 631 (“[M]ost
legislation classifies for one purpose or another, with resulting
disadvantage to various groups or persons.”).
In sum, Supreme Court and Fourth Circuit precedent support
the conclusion that physiological differences between men and
women give rise to the privacy interests that justify segregating
bathrooms, showers, and other similar facilities on the basis of
sex. In addition, Plaintiffs admit that the vast majority of birth
certificates
genitalia.
accurately
reflect
an
individual’s
external
Although the correlation between genitalia and the sex
listed on a person’s birth certificate is not perfect in every
case,
there
is
certainly
a
reasonable
fit
characteristics, which is what the law requires.
between
these
See Staten, 666
35
Of course, not all transgender individuals are negatively impacted by
Part I because some may be able to change the sex on their birth
certificates, with or without sex reassignment surgery, and others may
choose to use bathrooms or other facilities that accord with their
biological sex, whether or not they suffer dysphoria as a result.
59
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F.3d at 162 (“In other words, the fit needs to be reasonable; a
perfect fit is not required.”).
At this preliminary stage, and in
light of existing case law, Plaintiffs have not made a clear
showing that they are likely to succeed on their Equal Protection
claim.
ii.
Due Process
The Fourteenth Amendment provides that no State may “deprive
any person of life, liberty, or property, without due process of
law.”
U.S. Const. amend. XIV, § 1.
The Supreme Court has long
held that, in addition to requiring the government to follow fair
procedures when taking certain actions, the Due Process Clause
also “bar[s] certain government actions regardless of the fairness
of the procedures used to implement them.”
474 U.S. 327, 331 (1986).
Daniels v. Williams,
As a result, a law that burdens a
fundamental right is subject to strict scrutiny and cannot be
upheld unless the State demonstrates that it is narrowly tailored
to serve a compelling interest.
See Carey v. Population Servs.
Int’l, 431 U.S. 678, 686 (1977); Walls v. City of Petersburg, 895
F.2d 188, 192 (4th Cir. 1990).
By contrast a law that does not
burden a fundamental right is subject only to rational basis
review, and a court must uphold such a law “so long as it bears a
rational relation to some legitimate end.”
Romer, 517 U.S. at
631.
For the reasons explained above, the court concludes that
60
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 60 of 83
Part
I
is
interest.
substantially
related
to
an
important
government
Because Part I passes intermediate scrutiny, the law
necessarily clears the lower hurdle of rational basis review.
See
Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 907
(9th Cir. 2007); Contest Promotions, LLC v. City and Cty. of San
Francisco, 100 F. Supp. 3d 835, 849 (N.D. Cal. 2015).
As a result,
in order to warrant preliminary relief, Plaintiffs must make a
clear showing that Part I burdens a fundamental right and therefore
triggers strict scrutiny.
Plaintiffs argue that Part I burdens two separate fundamental
rights.
First, they argue that Part I burdens a fundamental right
to informational privacy by forcing transgender individuals to use
bathrooms
in
which
they
will
appear
out
of
place,
disclosing their transgender status to third parties.
thereby
Second,
they argue that Part I violates a right to refuse unwanted medical
treatment because many States, including North Carolina, require
transgender individuals to undergo sex reassignment surgery before
changing the sex on their birth certificates.
Each argument will
be addressed in turn.
(a)
Informational Privacy
The constitutional right to privacy protects, among other
things,
an
individual’s
personal matters.”
“interest
in
avoiding
disclosure
Whalen v. Roe, 429 U.S. 589, 599 (1977).
right to privacy, however, is not absolute.”
of
“The
Walls, 895 F.2d at
61
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192.
Instead,
the
constitutional
right
to
privacy
is
only
implicated when State action compels disclosure of information of
a “fundamental” nature.
Id.
“The more intimate or personal the
information, the more justified is the expectation that it will
not be subject to public scrutiny.”
Id.
The Fourth Circuit has
held that, as a “first step” in determining whether a particular
category of information is entitled to constitutional protection,
courts
should
examine
whether
the
information
“is
within
individual’s reasonable expectations of confidentiality.”
Plaintiffs
contend
that
a
person’s
an
Id.
transgender
status
constitutes sensitive medical information and that this type of
information is subject to constitutional protection.
They cite
various cases in which courts held that information qualifies for
constitutional protection when it is of a sexual, personal, or
humiliating nature, or when the release of the information could
subject the person to a risk of bodily harm.
See Powell v.
Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (“[T]he right to
confidentiality
includes
the
right
to
protection
regarding
information about the state of one’s health.”) (quoting Doe v.
City of New York, 15 F.3d 264, 267 (2d Cir. 1994)); Love v. Johnson,
146 F. Supp. 3d 848, 853 (E.D. Mich. 2015).
that
an
individual’s
constitutional
protection
transgender
because
such
These courts concluded
status
qualifies
information
is
for
of
a
private, sexual nature and disclosure of this information could
62
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subject a transgender person to ridicule, harassment, or even
bodily harm.
See Powell, 175 F.3d at 111 (“Like HIV status . . .
transsexualism is the unusual condition that is likely to provoke
both an intense desire to preserve one’s medical confidentiality,
as well as hostility and intolerance from others.”); Love, 146 F.
Supp. 3d at 856; see also K.L. v. Alaska, Dep’t of Admin., Div. of
Motor Vehicles, No. 3AN-11-05341, 2012 WL 2685183, at *6 (Alaska
Super.
Ct.
Mar.
12,
2012)
(concluding
that
an
individual’s
transgender status qualifies for privacy protection under Alaska
law).
In Love, for example, the court considered a Michigan law
that prevented individuals from changing the sex on their driver’s
license. 36
146 F. Supp. 3d at 856–57.
The court concluded that
this policy burdened Due Process privacy interests because it
forced transgender individuals to tacitly reveal their transgender
status whenever they displayed their driver’s licenses to others.
Id.; see also K.L., 2012 WL 2685183 at *4–7 (same).
None of these cases applied Fourth Circuit law, however, and
the Fourth Circuit’s decision in Walls casts doubt on the validity
of these cases in this circuit.
In Walls, a public employee was
fired after refusing to complete a background check that included
questions about her prior marriages, divorces, debts, criminal
36
Notably, the policy in Love only applied to individuals who sought to
change the sex on an existing driver’s license; Michigan apparently did
not require individuals to present a birth certificate to support their
claimed sex when initially obtaining a license. Id. at 851–52 & n.2.
63
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history, and sexual relationships with same-sex partners.
F.2d at 190.
895
The employee brought an action under 42 U.S.C. § 1983
against her employer, claiming that the questionnaire violated her
right to privacy.
Walls, 895 F.2d at 189–92.
The Fourth Circuit
explained that the “right to privacy protects only information
with respect to which the individual has a reasonable expectation
of privacy.”
Id. at 193.
The court therefore concluded that the
right to privacy did not protect the information sought in the
agency’s questionnaire, including questions about prior marriages,
divorces, and children, “to the extent that this information is
freely available in public records.”
Id.
Walls suggests that Part I does not burden a fundamental
privacy interest, at least under current Fourth Circuit law.
Plaintiffs argue that Part I discloses an individual’s transgender
status to third parties by revealing the sex on their birth
certificates
through
stereotypically-feminine
their
choice
appearing
of
bathroom;
individual
uses
when
a
a
men’s
bathroom, Plaintiffs argue, third parties will know that the
individual has a male birth certificate and infer that the person
is transgender.
(See Doc. 9 at ¶¶ 223–24.)
But pursuant to Walls,
individuals have no constitutionally-protected privacy interest in
information that is freely available in public records.
at 193.
895 F.2d
And although the parties have not addressed this issue,
the sex listed on an individual’s birth certificate appears to be
64
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freely available in public records, at least if the individual was
born
in
North
Carolina.
See
N.C.
Gen.
Stat.
§ 130A-93(b)
(providing that all birth data collected by the State qualifies as
public records except for the names, addresses, and social security
numbers
of
children
and
parents);
see
also
id.
§ 132-1(b)
(providing that all public records “are the property of the people”
and requiring that the public be given access to such information
“free or at minimal cost unless otherwise specifically provided by
law”).
As
a
result,
regardless
of
whether
the
court
finds
the
reasoning in Love and K.L. persuasive, the sex listed on a person’s
birth certificate does not appear to qualify for constitutional
protection under Walls.
Plaintiffs cite general statements about
privacy from Walls, but they overlook the obvious question of why
the rule the court actually applied in that case should not govern
this case as well.
(See Doc. 22 at 36–38; Doc. 73 at 36–37.)
It
is possible that, with further development, Plaintiffs may be able
to sufficiently distinguish Walls and demonstrate that the rule
from that case should not apply outside of the employment context.
For example, the policies at issue in Love and K.L. arguably have
more in common with Part I than Walls, which dealt with an
employment background check – a situation in which a third party
can reasonably be expected to know the individual’s name, address,
and other identifying information that would make a public records
65
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search more practicable.
Walls, 895 F.2d at 193–95.
On the other hand, there are also significant distinctions
between this case and the cases cited by Plaintiffs.
Unlike Part
I,
actors
most
of
Plaintiffs’
intentionally
information.
revealed
cases
or
involved
threatened
State
to
reveal
who
private
See, e.g., Powell, 175 F.3d at 109–11 (prison guard
openly discussed an inmate’s transgender status in the presence of
other inmates); Sterling v. Borough of Minersville, 232 F.3d 190,
192, 196 (3d Cir. 2000) (police officer threatened to tell an
arrestee’s family that the arrestee was gay).
Even Love and K.L.,
Plaintiffs’ most factually-analogous cases, challenged policies
governing the modification of State documents rather than the
circumstances in which a State may rely on those documents.
146 F. Supp. 3d at 856; K.L., 2012 WL 2685183 at *4–8.
Love
Love held
that Michigan must allow transgender individuals to change the sex
on their driver’s license so that they would not have to reveal
their transgender status during traffic stops; plaintiffs did not
argue, and the court did not hold, that the State should be
enjoined from asking drivers for identification during traffic
stops.
See 146 F. Supp. 3d at 856; see also K.L., 2012 WL 2685183
at *4–8 (same).
Unlike the plaintiffs in Love and K.L., Plaintiffs challenge
North
Carolina’s
ability
to
use
birth
certificates
as
an
identifying document in the context of bathrooms, showers, and
66
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other
facilities,
rather
than
its
rules
for
altering
information contained in the birth certificate itself.
the
This
highlights a potential conceptual difficulty with Plaintiffs’ Due
Process theories.
Even under Part I, an individual’s choice of
bathroom does not directly or necessarily disclose whether that
person is transgender; it merely discloses the sex listed on the
person’s birth certificate.
Part I does not disclose medical
information about any persons whose gender identity aligns with
their birth certificate, either because they are not transgender
or because they have successfully changed their birth certificate
to match their gender identity (with or without sex reassignment
surgery).
Nor does Part I disclose medical information about
transgender
individuals
whose
name,
appearance,
or
other
characteristics do not readily identify their gender identity.
Part I could only disclose an individual’s transgender status
inasmuch as third parties are able to infer as much in light of
the person’s birth certificate and appearance.
Thus, it is not
readily apparent to what extent any Due Process concerns are
attributable to Part I as opposed to the laws that govern the
modification of birth certificates.
In light of the foregoing, Plaintiffs have not clearly shown
that
they
are
informational
likely
privacy
to
claim.
succeed
See
on
the
Winter,
merits
555
U.S.
of
their
at
20–22
(stating that a preliminary injunction is “an extraordinary remedy
67
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 67 of 83
that may only be awarded upon a clear showing that the plaintiff
is entitled to such relief” (emphasis added)).
The law in this
area is substantially underdeveloped, however, and the parties
devoted relatively little attention to this claim both in their
briefs and at the hearing on this matter.
Although Plaintiffs
have not demonstrated that they are entitled to preliminary relief
on this claim, their arguments and authorities raise substantial
questions that merit additional consideration.
As a result, the
court will reserve ruling on Plaintiffs’ informational privacy
claim at this time so that the parties may submit additional
briefing according to the schedule outlined in Section III below.
(b)
Unwanted Medical Treatment
Plaintiffs also contend that Part I violates transgender
individuals’
constitutional
right
to
refuse
unwanted
medical
treatment because North Carolina and many other States require sex
reassignment surgery before the sex on a person’s birth certificate
may be changed.
(Doc. 9 ¶¶ 228–34; Doc. 22 at 39.)
The parties’ arguments on this issue are even less developed
than those pertaining to informational privacy, with just three
paragraphs devoted to the issue in the parties’ principal briefs
combined.
(See Doc. 22 at 38–39; Doc. 55 at 18.)
Plaintiffs rely
almost exclusively on United States v. Charters, 829 F.2d 479 (4th
Cir. 1987).
In Charters, the Fourth Circuit held that a mentally
ill prisoner had a Due Process interest in refusing the State’s
68
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efforts to medicate him with antipsychotic drugs against his will.
Id. at 490–500.
In reaching this decision, the court applied
principles derived from the “rights to freedom from physical
invasion and freedom of thought as well as the right to privacy
protected by the Constitution and the common law.”
Id. at 490.
From these principles, the court observed, “The right to refuse
medical treatment has been specifically recognized as a subject of
constitutional protection.”
Id. at 491.
Governments assuredly must meet heightened scrutiny before
forcibly medicating prisoners, or any citizens for that matter,
against their will. But Plaintiffs have not shown how this holding
applies to Part I, which does not address medical treatment at
all.
True, Part I may require some transgender individuals (who
otherwise do not benefit from the court’s injunction as to Title
IX facilities) to undergo potentially unwanted medical treatment
if they wish to access public bathrooms, showers, and other similar
facilities that align with their gender identity.
But they are
free to use facilities that align with their biological sex, and
they may have access to single-user facilities.
As much as one
sympathizes with the plight of these transgender individuals, this
degree
of
“compulsion”
is
far
removed
from
the
situation
in
Charters, where a captive prisoner was strapped down and forced to
submit to medication against his will.
482–84.
See Charters, 829 F.2d at
If the Due Process Clause were implicated any time an
69
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 69 of 83
individual must undergo medical treatment in order to access a
desired benefit or service, it would cast serious doubts on a wide
variety of laws.
See, e.g., N.C. Gen. Stat. § 130A-155 (requiring
schools and child care facilities to ensure that children have
received appropriate vaccines before accepting them as students);
19A N.C. Admin. Code § 3B.0201(a)(3) (requiring some individuals
to wear corrective lenses in order to obtain a driver’s license). 37
At a minimum, further development of Plaintiffs’ argument is
necessary before the court can determine whether Charters prevents
the State from enforcing Part I. As with Plaintiffs’ informational
privacy claim, the court will reserve ruling to give the parties
an opportunity to submit additional briefing on this claim in
accordance with the schedule outlined in Section III below.
2.
Irreparable Harm
A party seeking a preliminary injunction must also show that
it
is
likely
to
preliminary relief.
suffer
irreparable
harm
Winter, 555 U.S. at 20.
in
the
absence
of
Irreparable injury
must be both imminent and likely; speculation about potential
future injuries is insufficient.
See id. at 22.
On the current record, the individual transgender Plaintiffs
37
Here, too, as with the informational privacy claim, Plaintiffs’ real
problem appears to be various States’ inflexible rules for changing one’s
sex on a birth certificate, in so far as Part I permits transgender users
who did not have any surgery to use facilities matching their gender
identity as long as their birth certificate has been changed – an issue
the parties have not adequately addressed.
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Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 70 of 83
have clearly shown that they will suffer irreparable harm in the
absence of preliminary relief.
All three transgender Plaintiffs
submitted declarations stating that single occupancy bathrooms and
other similar facilities are generally unavailable at UNC and other
public agencies.
(See Doc. 22-4 ¶¶ 18–20; Doc. 22-8 ¶ 27; Doc.
22-9 ¶¶ 24–25.)
In
fact,
two
of
the
individual
transgender
Plaintiffs indicate that they are not aware of any single occupancy
facilities in the buildings in which their classes are held. (Doc.
22-8 ¶ 27; Doc. 22-9 ¶¶ 24–25.)
Part I therefore interferes with
these
participate
individuals’
ability
educational activities.
22-9 ¶ 24.)
to
in
their
work
and
(See Doc. 22-4 ¶ 21; Doc. 22-8 ¶ 27; Doc.
As a result, some of these Plaintiffs limit their
fluid intake and resist the urge to use a bathroom whenever
possible.
lead
to
(Doc. 22-4 ¶ 21; Doc. 22-8 ¶ 32.)
serious
medical
consequences,
such
infections, constipation, and kidney disease.
4.)
Such behavior can
as
urinary
tract
(Doc. 22-16 at 3–
This concern is not merely speculative; there is evidence
that one of the individual transgender Plaintiffs has already begun
to suffer medical consequences from behavioral changes prompted by
Part I.
(Doc. 73-1 at 1–2.)
In their response to Plaintiffs’ motion, Defendants suggest
that the individual transgender Plaintiffs’ claims of irreparable
harm are speculative and exaggerated, but Defendants have not
presented any evidence to contradict Plaintiffs’ evidence.
(See
71
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 71 of 83
Doc. 61 at 22–26.)
Therefore, on this record, the court has no
basis for doubting Plaintiffs’ assertions that they cannot use
multiple occupancy facilities that match their birth certificates
for
fear
of
harassment
and
violence,
that
single
occupancy
facilities are not reasonably available to them, and that they are
at a serious risk of suffering negative health consequences as a
result.
Defendants also argue that Plaintiffs delayed in filing their
motion for preliminary injunction seven weeks after the passage of
HB2. (Doc. 61 at 23.) In some circumstances, a delay in requesting
preliminary relief can be relevant to the irreparable harm inquiry.
See, e.g., Static Control Components, Inc. v. Future Graphics,
LLC, No. 1:06cv730, 2007 U.S. Dist. LEXIS 36474, at *7–9 (M.D.N.C.
May 11, 2007) (finding that an employer’s eight-week delay in
seeking to prevent a former employee from working for a competitor
weighed against a finding of irreparable harm); Fairbanks Capital
Corp. v. Kenney, 303 F. Supp. 2d 583, 590–91 (D. Md. 2003) (finding
an eleven-month delay in bringing a trademark infringement suit to
be reasonable under the circumstances).
Here, however, HB2 was
passed on an expedited schedule, and Plaintiffs doubtlessly needed
some time to compile the more than sixty documents they submitted
to support their motion, including exhibits, declarations from
fact witnesses, and the opinions of expert witnesses. In addition,
the legal landscape regarding HB2’s enforcement remained in flux
72
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 72 of 83
immediately after the laws’ passage.
(See, e.g., Doc. 23-24; Doc.
23-28.)
Under these circumstances, Plaintiffs’ minimal delay in
seeking
preliminary
relief
does
not
undermine
their
claims
regarding irreparable harm.
Finally, the court notes that similar facts were deemed
sufficient to support a finding of irreparable harm in G.G.
See
G.G., 2016 WL 3581852 at *1; G.G., 822 F.3d at 727–29 (Davis, J.,
concurring).
The court therefore concludes that the individual
transgender Plaintiffs have made a clear showing that they are
likely to suffer irreparable harm in the absence of preliminary
relief.
3.
In
Balance of Equities and the Public Interest
addition
irreparable
harm,
to
likelihood
those
seeking
of
success
preliminary
on
the
relief
merits
and
must
also
demonstrate that the balance of equities tips in their favor and
that an injunction is in the public interest.
20.
Winter, 555 U.S. at
On the current record, both favor entry of an injunction.
The balance of equities favors the entry of an injunction.
One noteworthy feature of this case is that all parties claim that
they want to preserve North Carolina law as it existed before the
law was enacted; they simply disagree about the contours of that
pre-HB2 legal regime.
(See Doc. 103 at 6, 15–21, 65–71, 74–90,
96–102; Doc. 9 ¶¶ 166–68.)
For the reasons discussed above, the
court concludes that Part I does not accurately restore the status
73
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 73 of 83
quo ante in North Carolina, at least as it existed in the years
immediately
preceding
2016.
While
Part
I
reiterates
the
male/female distinction for the vast majority of persons, it
imposes
a
agencies
regarding
new
from
the
restriction
providing
use
of
that
flexible,
bathrooms,
effectively
prohibits
case-by-case
showers,
and
accommodations
other
facilities for transgender individuals where feasible. 38
§§ 1.2–1.3.
State
similar
See HB 2
Because Defendants do not claim to have had any
problems with the pre-2016 regime (Doc. 103 at 65–71, 74–90, 96–
102), the entry of an injunction should not work any hardship on
them.
By contrast, the failure to enjoin Part I would cause
substantial hardship to the individual transgender Plaintiffs,
disrupting their lives.
For similar reasons, the court concludes that an injunction
is in the public interest.
Of course, every individual has “a
legitimate and important interest in [ensuring] that his or her
nude or partially nude body, genitalia, and other private parts
are not involuntarily exposed.”
G.G., 822 F.3d at 723 (citations
and internal quotation marks omitted).
The dispute in this case
centers on facilities of the most intimate nature, and the State
38
For this reason, the preliminary injunction in this case is a
prohibitory injunction and is not subject to the heightened standard
that applies to mandatory injunctions. See Pashby v. Delia, 709 F.3d
307, 319 (4th Cir. 2013) (“Prohibitory preliminary injunctions aim to
maintain the status quo and prevent irreparable harm while a lawsuit
remains pending.”).
74
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 74 of 83
clearly has an important interest in protecting the privacy rights
of all citizens in such facilities.
See, e.g., Virginia, 518 U.S.
at 550 n.19 (stating that separate facilities in coeducational
institutions are “necessary to afford members of each sex privacy
from the other sex”); Faulkner, 10 F.3d at 232 (noting “society’s
undisputed approval of separate public restrooms for men and women
based on privacy concerns”).
The privacy and safety concerns
raised by Defendants are significant, and this is particularly so
as they pertain to the protection of minors.
See, e.g., Beard,
402 F.3d at 604 (“Students of course have a significant privacy
interest in their unclothed bodies.”).
At the hearing on the
present motion, Plaintiffs acknowledged that the State has a
legitimate interest in protecting the privacy of its citizens,
particularly
bathrooms,
interest.
But
minors
showers,
and
and
students,
other
and
similar
that
sex-segregated
facilities
serve
this
from
such
(See Doc. 103 at 15–19.)
transgender
individuals
privacy and safety rights.
are
not
exempted
The current record indicates that many
public agencies have become increasingly open to accommodating the
interests of transgender individuals as society has evolved over
time.
case
(See, e.g., Doc. 22-19 ¶¶ 8–9.)
accommodation,
while
developing,
This practice of case-byappears
to
have
gained
acceptance in many places across North Carolina over the last few
years.
(See, e.g., Doc. 22-4 ¶ 15; Doc. 22-8 ¶ 19; Doc. 22-9
75
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 75 of 83
¶¶ 15, 19–20.)
And the preliminary record contains uncontested
evidence that these practices allowed the individual transgender
Plaintiffs to use bathrooms and other facilities consistent with
their gender identity for an extended period of time without
causing any known infringement on the privacy rights of others.
(See Doc. 22-4 ¶ 30; Doc. 22-8 ¶ 25; Doc. 22-9 ¶ 20.)
In fact, rather than protect privacy, it appears at least
equally likely that denying an injunction will create privacy
problems,
as
Plaintiffs,
it
who
would
require
outwardly
appear
the
as
individual
the
sex
transgender
with
which
they
identify, to enter facilities designated for the opposite sex
(e.g., requiring stereotypically-masculine appearing transgender
individuals to use women’s bathrooms), thus prompting unnecessary
alarm and suspicion.
(See, e.g., Doc. 22-9 ¶ 28 (describing one
student’s experiences being “screamed at, shoved, slapped, and
told to get out” when using bathrooms that did not match the
student’s gender identity.)
As counsel for Governor McCrory
candidly acknowledged, even if Part I remains in effect, “some
transgender individuals will continue to use the bathroom that
they always used and nobody will know.”
Finally,
proffered
by
the
the
argument
State
as
for
to
(Doc. 103 at 70.)
safety
and
transgender
privacy
users
undermined here by the structure of Part I itself.
are
concerns
somewhat
Unlike the
policy in G.G., which contained no exceptions, Part I permits some
76
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 76 of 83
transgender
individuals
to
use
bathrooms,
showers,
and
other
facilities that do not correspond with their external genitalia.
This
is
so
because
some
States
do
not
permit
transgender
individuals to change their birth certificates even after having
sex reassignment surgery, see, e.g., Tenn. Code Ann. § 68-3203(d), while others allow modification of birth certificates
without such surgery, see, e.g., Md. Code, Health-Gen § 4-211.
In
this regard, Part I’s emphasis on birth certificates elevates form
over substance to some degree as to some transgender users.
As for safety, Defendants argue that separating facility
users by biological sex serves prophylactically to avoid the
opportunity for sexual predators to prey on persons in vulnerable
places.
However, the individual transgender Plaintiffs have used
facilities corresponding with their gender identity for over a
year without posing a safety threat to anyone.
(See Doc. 22-4
¶¶ 15, 30; Doc. 22-8 ¶¶ 19, 25; Doc. 22-9 ¶¶ 15, 19–20.) Moreover,
on the current record, there is no evidence that transgender
individuals overall are any more likely to engage in predatory
behaviors than other segments of the population. In light of this,
there is little reason to believe that allowing the individual
transgender
Plaintiffs
to
use
partitioned,
multiple
occupancy
bathrooms corresponding with their gender identities, as well as
UNC to seek to accommodate use of similar showers and changing
facilities, will pose any threat to public safety, which will
77
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 77 of 83
continue to be protected by the sustained validity of peeping,
indecent exposure, and trespass laws.
And although Defendants
argue that a preliminary injunction will thwart enforcement of
such safety laws by allowing non-transgender predators to exploit
the opportunity to cross-dress and prey on others (Doc. 55 at 4–
5), the unrefuted evidence in the current record suggests that
jurisdictions
that
have
adopted
accommodating
bathroom
access
policies have not observed subsequent increases in crime, (see
Doc. 22-10 at 6–10; Doc. 22-13).
Finally, the court acknowledges that “any time a State is
enjoined
by
a
court
from
effectuating
statutes
enacted
by
representatives of its people, it suffers a form of irreparable
injury.”
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). In this case,
however, this concern lessened by the continued validity of Parts
II and III of HB2, which serve the State’s ostensible goal of
preempting the Charlotte ordinance and maintaining the law as it
existed before March 2016.
The State acknowledges that it had no
problems with that pre-2016 legal regime.
(Doc. 103 at 65–71, 74–
90, 96–102.)
In sum, the court has no reason to believe that an injunction
returning to the state of affairs as it existed before March 2016
would
pose
a
privacy
or
transgender or otherwise.
safety
risk
for
North
Carolinians,
It is in the public interest to enforce
78
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 78 of 83
federal anti-discrimination laws in a fashion that also maintains
long-standing State laws designed to protect privacy and safety.
On this record, allowing UNC to permit the transgender Plaintiffs
to use multiple occupancy, partitioned restrooms corresponding to
their gender identity, and to seek flexible accommodation for
changing rooms and other facilities, therefore serves the public
interest.
III. CONCLUSION
Plaintiffs’ motion seeks to preliminarily enjoin Defendants
“from enforcing Part I of House Bill 2.”
Doc. 22 at 44–45.)
(Doc. 21 at 3; see also
As a result, the issue currently before the
court is whether Title IX or the Constitution prohibits Defendants
from enforcing HB2’s exclusion of transgender individuals from
multiple-occupancy
bathrooms,
showers,
and
other
similar
facilities under all circumstances based solely on the designation
of “male” or “female” on their birth certificate.
For
the
reasons
stated,
applicable
Fourth
Circuit
law
requires that DOE’s guidance defining “sex” to mean gender identity
be accorded controlling weight when interpreting DOE’s Title IX
regulations.
Because
Part
I
of
HB2
prevents
transgender
individuals from using multiple-occupancy bathrooms and similar
facilities
based
solely
on
the
gender
listed
on
their
birth
certificate, it necessarily violates DOE’s guidance and cannot be
enforced.
As for Plaintiffs’ constitutional claims, Plaintiffs
79
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 79 of 83
have not made a clear showing they are likely to succeed on their
Equal Protection claim, and the court reserves ruling on the Due
Process claims pending further briefing from the parties.
The Title IX claim currently before the court is brought by
the individual transgender Plaintiffs on their own behalf; the
current complaint asserts no claim for class relief or any Title
IX claim by ACLU-NC on behalf of its members.
243.) 39
Consequently,
the
relief
granted
now
(Doc. 9 ¶¶ 235–
is
as
to
the
individual transgender Plaintiffs.
The individual transgender Plaintiffs have not sought an
order guaranteeing them access to any specific facility.
The
court’s order will return the parties to the status quo ante
existing immediately before the passage of Part I of HB2, wherein
public agencies accommodated the individual transgender Plaintiffs
on a case-by-case basis, rather than applying a blanket rule to
all people in all facilities under all circumstances.
Plaintiffs
have no complaint with UNC’s pre-HB2 policy; Defendants, in turn,
do not contend that it caused any significant privacy or safety
concerns.
Such an order is also consistent with the DOE opinion
letter, which states that schools “generally” must treat students
consistent with their gender identity.
(Doc. 23-29 at 3.)
As a
39
Although Plaintiffs moved to amend their complaint after the hearing
on the present motion (Doc. 116), the motion to amend has not been
resolved.
80
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 80 of 83
result, the court does not decide how Defendants should apply DOE’s
guidance in all situations and circumstances.
Suffice it to say
that for the time being, UNC is not constrained from accommodating
the individual transgender Plaintiffs through appropriate means
that
accord
with
DOE
guidance
and
recognize
the
unique
circumstances of each case, just as it apparently did for several
years prior to HB2.
In doing so, UNC should be mindful of North
Carolina’s trespass, peeping, and indecent exposure laws, which
protect the privacy and safety of all citizens, regardless of
gender identity.
In short, UNC may not apply HB2’s one-size-fits-
all approach to what must be a case-by-case inquiry. 40
IT
IS
THEREFORE
ORDERED
that
Plaintiffs’
motion
for
preliminary injunction (Doc. 21) is GRANTED IN PART and DENIED IN
PART, as follows:
(1)
The
individual
preliminary
GRANTED.
transgender
injunction
The
on
University
Plaintiffs’
their
of
Title
North
motion
IX
claim
Carolina,
for
is
its
officers, agents, servants, employees, and attorneys,
and all other persons acting in concert or participation
with them are hereby ENJOINED from enforcing Part I of
40
To the extent the individual transgender Plaintiffs assert an
unqualified right to use all multiple occupancy bathrooms, showers, and
changing rooms under all circumstances (see Doc. 9 at 56), that issue
is not currently before the court. Whether it will be at a later stage
in this case, or as part of the United States’ motion for preliminary
injunction in the 425 case, remains for later determination.
81
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 81 of 83
HB2 against the individual transgender Plaintiffs until
further order of the court.
(2)
Plaintiffs' motion for preliminary injunction on their
Equal Protection claim is DENIED without prejudice to a
final determination on the merits.
(3)
The court reserves ruling on Plaintiffs’ motion for
preliminary injunction on their Due Process claims.
If
Plaintiffs wish to submit additional briefing on these
claims, they must do so no later than September 9, 2016.
Any response briefs must be filed no later than September
23, 2016, and any reply briefs must be filed no later
than October 7, 2016.
Although the parties may address
any matter relevant to the Due Process claims in their
briefs, the court is particularly interested in the
following
questions:
(1)
whether
the
sex
on
an
individual’s birth certificate is freely available in
public records in North Carolina and other States and,
if so, whether individuals have a Due Process privacy
interest in such information; and (2) the degree to which
a law in general, and Part I in particular, must burden
a fundamental right in order to warrant strict scrutiny.
Plaintiffs’ initial brief and any response briefs may
not exceed twenty pages per side, and Plaintiffs’ reply
may
not
exceed
ten
pages.
If
the
parties
desire
82
Case 1:16-cv-00236-TDS-JEP Document 127 Filed 08/26/16 Page 82 of 83
additional
oral
argument
regarding
Plaintiffs’
Due
Process claims, any hearing will be combined with the
consolidated preliminary injunction hearing and trial on
the merits in the 425 case.
/s/
Thomas D. Schroeder
United States District Judge
August 26, 2016
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