CARCANO et al v. MCCRORY, et al

Filing 248

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 9/30/2018. For the reasons stated herein, Plaintiffs' motion for leave to file the declaration of Ericka Myers (Doc. 236 ) is DENIED, th e motion to dismiss by the UNC Defendants (Doc. 222 ) is GRANTED IN PART and DENIED IN PART, and the motion to dismiss by Intervenor-Defendants (Doc. 221 ) is GRANTED IN PART and DENIED IN PART. Additional briefing as stated herein is due within 30 days of the issuance of this order.(Engle, Anita)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOAQUÍN CARCAÑO, PAYTON GREY
MCGARRY;
HUNTER
SCHAFER;
MADELINE GOSS; ANGELA GILMORE;
QUINTON HARPER; and AMERICAN
CIVIL LIBERTIES UNION OF NORTH
CAROLINA,
Plaintiffs,
v.
ROY COOPER, in his official
capacity as Governor of North
Carolina; UNIVERSITY OF NORTH
CAROLINA; MARGARET SPELLINGS,
in her official capacity as
President of the University of
North Carolina; JOSHUA STEIN,
in his official capacity as
Attorney
General
of
North
Carolina; MACHELLE SANDERS, in
her
official
capacity
as
Secretary of the North Carolina
Department of Administration;
MANDY K. COHEN, in her official
capacity as Secretary of the
North Carolina Department of
Health and Human Services; and
JAMES H. TROGDON III, in his
official capacity as Secretary
of
the
North
Carolina
Department of Transportation
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,

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1:16cv236

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Intervenor-Defendants.

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This case originated as a challenge to North Carolina’s Public
Facilities Privacy & Security Act, 2016 N.C. Sess. Laws 3, commonly
known as House Bill 2 (“HB2”), which required, among other things,
that public agencies ensure that multiple occupancy restrooms,
showers, and other similar facilities be “designated for and only
used by” persons based on the “biological sex” listed on their
birth certificate.

That law was repealed during the pendency of

this action, and Plaintiffs eventually filed a Fourth Amended
Complaint (Doc. 210), claiming that the repealing law, 2017 N.C.
Sess. Laws 4, commonly known as House Bill 142 (“HB142”), violates
their Fourteenth Amendment rights, as well as Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title
IX”) and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e

et

Plaintiffs,

seq.
who

(“Title
include

VII”)

(id.

persons

who

¶¶

1,

35).

identify

allege two principal forms of injury.

as

In

short,

transgender,

First, they contend that

they are injured by legal uncertainty as to which restrooms,
showers,
Second,

and

changing

they

contend

facilities
that

they

they
are

are

permitted

injured

both

by

to

use.

HB142’s

preemption of attempts by any local government to “enact or amend

2

an ordinance regulating private employment practices or regulating
public accommodations,” HB142 § 31 (“Section 3”); and also by
HB142’s prohibition of attempts by any state agency or political
subdivision to “regulat[e] . . . access to multiple occupancy
restrooms, showers, or changing facilities, except in accordance
with an act of the General Assembly,” HB142 § 2 (“Section 2”).
Before the court are motions to dismiss by Senator Phil Berger
and Speaker Tim Moore (“Intervenor-Defendants”), proceeding in
their official capacities as heads of the General Assembly’s two
chambers (Doc. 221), and by the University of North Carolina
(“UNC”) and its President, Margaret Spellings (together, the “UNC
Defendants”) (Doc. 222).2

The court held a hearing on the motions

on June 25, 2018.
For

the

reasons

set

forth

below,

the

court

finds

that

Plaintiffs lack standing as to their substantive due process (Count
1), Title IX (Count 6), and Title VII (Count 7) claims based on
alleged legal uncertainty caused by HB142, but do have standing to

1

This provision expires on December 1, 2020.

2

HB142 § 4.

Separately, Plaintiffs have moved jointly with Governor Cooper and
those Defendants associated with his administration for entry of a
consent decree that would declare that transgender persons are not
prevented from using public facilities in accordance with their gender
identity, and permanently enjoining those Defendants and their employees
from prohibiting transgender persons from doing so.
(Doc. 216; Doc.
216-1.) Because Intervenor-Defendants and the UNC Defendants contend
that Plaintiffs lack standing to pursue their claims, the court has
determined that it must first resolve the issue of its subject matter
jurisdiction before entertaining the proposed consent decree. (Doc. 226
at 2.)

3

pursue their equal protection (Count 2) claims relating to the
preemption provisions of Sections 2 and 3, except as to President
Spellings.

Further, the court declines to dismiss Plaintiffs’

contingent claims involving HB2 (Counts 3, 4, and 5) at this time
and reserves ruling on Plaintiffs’ nominal damages (Counts 6 and
7) claims for alleged Title VII and IX violations during the time
HB2 was in effect.

As to Count 2, the court finds that Plaintiffs

fail to state a claim based on Section 2, but succeed in stating
a claim based on Section 3.
As a result, the UNC Defendants’ motion to dismiss will be
granted except as to Plaintiffs’ contingent claims involving HB2
in Counts 3, 4, and 5, and as to Plaintiffs’ claims for nominal
damages in Counts 6 and 7 for the alleged Title VII and IX
violations that occurred while HB2 was in effect.
Defendants’

motion

to

dismiss

will

be

granted

Intervenorexcept

as

to

Plaintiffs’ equal protection claims based on Section 3 in Count 2,
and as to Plaintiffs’ contingent claims involving HB2 in Counts 3,
4, and 5.
I.

BACKGROUND
The

facts

are

found

in

the

403

numbered

paragraphs

of

Plaintiffs’ 103-page Fourth Amended Complaint, which is construed
in the light most favorable to Plaintiffs, as well as those matters
of which the court can take judicial notice.
they demonstrate the following:
4

Considered together,

A.

HB2

On February 22, 2016, the Charlotte City Council amended, by
a

vote

of

seven

to

four,

its

existing

non-discrimination

ordinances, making it unlawful to discriminate on the basis of
“marital

status,

identity,

[and]

familial
gender

status,

sexual

expression.”3

orientation,
(Doc.

127

(alteration in original); see also Doc. 210 ¶ 200.)
also

repealed

prior

rules

that

exempted

gender

at

12–13

The amendment

“[r]estrooms,

shower

rooms, bathhouses, and similar facilities which are in their nature
distinctly

private”

discrimination.

from

the

city’s

prohibitions

against

sex

(Doc. 127 at 12 (alteration in original).)

The Charlotte ordinance prompted a quick reaction from thenGovernor Patrick McCrory and the General Assembly.

Governor

McCrory had informed the Charlotte City Council members before
passage of the ordinance that the State would likely take immediate
action upon the ordinance’s passage, since it would “‘chang[e]
basic

long-established

values

and

norms’

surrounding

‘public

restrooms’” and present “possible danger from deviant actions by
individuals taking improper advantage of a bad policy.”
¶ 205.)
fellow

(Doc. 210

On February 23, 2016, Speaker Moore announced that he and
Republicans

would

seek

“a

3

legislative

intervention

to

Charlotte’s
existing
non-discrimination
ordinances
prohibited
discrimination on the basis of race, gender, religion, national origin,
ethnicity, age, disability, and sex. (Doc. 127 at 12 n.5.)

5

correct [the Charlotte City Council’s] radical course.”
¶ 206.)

(Id.

On March 23, 2016, the General Assembly convened for a

special session, during which members of the House Judiciary IV
Committee

—

the

committee

that

first

considered

HB2

—

were

allegedly given only minutes to read HB2 before voting on whether
to send the bill back to the House for a full debate.
215.)
¶ 216.)

(Id. ¶¶ 211–

After three hours of debate, the House passed HB2.

(Id.

The bill proceeded to pass unanimously in the Senate,

following a walk-out by all Democratic Senators.

(Id. ¶ 217.)

Governor McCrory signed the bill into law later that day, and it
became effective immediately.

(Id. ¶ 220.)

HB2 affected North Carolina law in several ways.
modified the State’s non-discrimination laws.

First, it

Previously, the

State had prohibited discrimination on the basis of race, religion,
color, national origin, age, sex, and handicap.

See HB2 § 3.1.

Part III of HB2 modified this language to prohibit discrimination
on the basis of “biological sex,” defined as “[t]he physical
condition of being male or female, which is stated on a person’s
birth certificate,” rather than simply “sex.”
(modifying N.C. Gen. Stat. § 143-422.2).

HB2 §§ 1.2–1.3, 3.1

It also extended these

non-discrimination provisions, which had previously applied only
to

the

State,

accommodation.
common-law

to

private

employers

See id. §§ 3.1-3.3.

causes

of

action

for
6

and

places

of

public

Part III also precluded state
violations

of

those

non-

discrimination provisions.

See id. § 3.2.

Second, Parts II and III of HB2 preempted all local ordinances
that

conflicted

with

the

new

non-discrimination

standards,

including the Charlotte ordinance that prompted HB2’s passage.
Id. §§ 2.1–3.3.

Third, Part I of HB2 explicitly set new rules for

the use of restrooms and changing facilities operated by state
agencies.

Specifically, Part I provided that all public agencies,

including local boards of public education, must “require” that
“every multiple occupancy bathroom or changing facility . . . be
designated for and only used by persons based on their biological
sex,” defined as the “physical condition of being male or female,
which is stated on a person’s birth certificate.”

Id. §§ 1.2-1.3.

Before HB2 was passed, Plaintiffs maintained, transgender
individuals used the bathrooms they believed aligned with their
gender identity without apparent fear of prosecution under state
law.

(See Doc. 103 at 20–21, (noting that “the status quo was

working for transgender people in that they could make these
judgments [about which bathrooms to use]”), and at 70 (Governor’s
counsel speculating same).)

Under Part I of HB2, North Carolina

law explicitly regulated which bathrooms were available for use by
transgender individuals — the bathrooms that matched the gender
listed on their birth certificates.

HB2 § 1.

Plaintiffs filed this action on March 28, 2016.

7

(Doc. 1.)

B.

Preliminary Injunction

On May 16, 2016, Plaintiffs moved to preliminarily enjoin
Defendants from enforcing Part I of HB2, the so-called “bathroom”
provisions.

(Doc. 21.)

After a hearing, the court issued an 83-

page decision on August 26, 2016, granting the motion as to three
individual Plaintiffs employed by UNC.
the

court

noted

that

for

(Doc. 127).

“transgender

In doing so,

individuals

who

used

facilities that did not match the sex listed on their birth
certificate[s],” HB2 foreclosed any argument that they believed
they had permission to enter facilities that matched their gender
identity.

(Id. at 18.)

The court found that the three individual

Plaintiffs were likely to succeed on the merits of their Title IX
claim because the Department of Education (“DOE”) had issued
guidance that “sex” under Title IX included gender identity such
that

covered

institutions

must

treat

transgender

individuals

consistent with their gender identity, which the Fourth Circuit
held in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d
709, 723 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239
(2017) (mem.) required this court’s deference.

(Doc. 127 at 45.)

The court also found that Plaintiffs had not shown that they were
likely to succeed on their equal protection claim and reserved
ruling on their due process claims.

(Doc. 127 at 59–60, 79–81.)

Plaintiffs subsequently filed a Second Amended Complaint on
September 21, 2016, (Doc. 151) and a Third Amended Complaint on
8

November 21, 2016 (Doc. 183).
In 2017, the DOE withdrew its interpretative guidance, which
led the Supreme Court to vacate the Fourth Circuit’s judgment in
G.G. and remand the case for further consideration. See Gloucester
Cty. Sch. Bd. v. G.G. ex. rel. Grimm, 137 S. Ct. 1239 (2017)
(mem.).

The Fourth Circuit subsequently remanded the case to the

district court, which dismissed all claims for prospective relief
as moot in light of the plaintiff’s graduation from high school,
but

continued

to

consider

claims

retrospective declaratory relief.

for

nominal

damages

and

Grimm v. Gloucester Cty. Sch.

Bd., No. 4:15-CV-54, 2017 WL 9882602 (E.D. Va. Dec. 12, 2017).
C.

HB142

As part of an apparent compromise to secure the repeal of
HB2, the Charlotte City Council repealed its non-discrimination
ordinance

on

December

21,

2016,4

shortly

before

the

General

Assembly met in special session to consider the repeal of HB2.
(Doc. 210 ¶¶ 227–33.)

During this special session, a bill which

would have been a “clean repeal” of HB2 — repealing HB2 with no
further conditions — was introduced but was referred to a committee
and never considered.

(Id. ¶ 235.)

On March 30, 2017, HB142 was passed and signed by Governor

4

A December 19, 2016 repeal was expressly conditioned on the General
Assembly’s repeal of HB2, but due to criticisms that the City’s repeal
was not sufficient, it passed the subsequent repeal two days later.
(Doc. 210 ¶¶ 227-233.)

9

Roy Cooper, who had been elected the prior November.
¶¶ 224, 244.)

(Doc. 210

In order to pass the bill quickly, the Senate

employed a process known as “gut and amend,”5 and neither the full
House nor the full Senate heard public comment before voting on
HB142.

(Id. ¶¶ 243–44.)

HB142 is set out as follows.
§ 1.

Section 1 repeals HB2.

HB142

Section 2 amends Chapter 142 of the North Carolina General

Statutes by adding a new article, Article 81A, § 143-760, which
reads:
State
agencies,
boards,
offices,
departments,
institutions, branches of government, including The
University of North Carolina and the North Carolina
Community College System, and political subdivisions of
the State, including local boards of education, are
preempted from regulation of access to multiple
occupancy restrooms, showers, or changing facilities,
except in accordance with an act of the General Assembly.
Id. § 2.

Section 3 provides that “[n]o local government in this

State may enact or amend an ordinance regulating private employment
practices or regulating public accommodations.”

Id. § 3.

Section

4 states that “[t]his act is effective when it becomes law” and
that “Section 3 of this act expires on December 1, 2020.”

Id.

§ 4.

5

Specifically, the North Carolina Senate took “an unrelated bill that
had already passed the House, removed the existing language and replaced
it with the text of what is now H.B. 142.” (Doc. 210 ¶ 243.) This
permitted the bill to meet a state requirement that every bill pass a
crossover deadline from one chamber to the other.

10

D.

Fourth Amended Complaint, Proposed Consent Decree, and
Motion for Leave to File Declaration of Ericka Myers

On August 29, 2017, in response to the passage of HB142,
Plaintiffs moved, with consent, for leave to file a Fourth Amended
Complaint.

(Doc. 208.)

The motion was granted (Doc. 209), and

Plaintiffs filed their Fourth Amended Complaint on September 7,
2017. (Doc. 210.) The Fourth Amended Complaint asserts that HB142
“is the culmination of a series of actions by North Carolina
lawmakers targeting LGBT individuals, and particularly transgender
individuals, for discrimination” and alleges that HB142 “violates
fundamental guarantees of equal protection and due process in the
U.S. Constitution and statutory prohibitions on discrimination
based on sex under Title IX and Title VII.”

(Id. ¶ 2.)

Specifically, Count 1 brings a substantive due process claim
against Governor Cooper, Attorney General Joshua Stein, Department
of Administration Secretary Michelle Sanders, Department of Health
and

Human

Services

Secretary

Mandy

K.

Cohen,

Department

of

Transportation Secretary James H. Trogdon (each sued in their
official capacity; hereinafter the “Executive Branch Defendants”)
and Spellings, claiming that (1) HB142 is void for vagueness
because it does not inform transgender individuals whether they
will

be

subject

to

prosecution

for

using

the

restrooms

or

facilities that align with their gender identity and (2) that these
Defendants have taken no action to clarify whether transgender

11

individuals will be subject to prosecution for using the restrooms
or facilities that align with their gender identity.
312.)

(Id. ¶¶ 297–

Count 2 brings an equal protection claim against the

Executive

Branch

Defendants

and

Spellings,

claiming

that

the

preemption of state agencies regulating access to restrooms or
other

single-sex,

multiple

user

facilities,

as

well

as

the

preemption of new or amended local non-discrimination protections,
constitute

discrimination

on

the

basis

of

sex

because

these

preemptions deprive transgender individuals of the ability to seek
greater protections at the local level on the same basis as other
groups, are being applied in a discriminatory manner, and were
passed with discriminatory intent.

(Id. ¶¶ 313–44.)

Counts 3, 4,

and 5 challenge HB2, alleging violations of equal protection, the
right to privacy, and liberty and autonomy in the right to refuse
unwanted medical treatment.

(Id. ¶¶ 345–90.)

Count 6 brings a

Title IX claim against UNC, claiming that UNC is a recipient of
federal funds and that it is discriminating on the basis of sex by
failing to ensure that transgender individuals may use restrooms
and changing facilities consistent with their gender identity
without fear of prosecution.

(Id. ¶¶ 391–98.)

Count 7 brings a

Title VII claim against UNC on behalf of Plaintiff Joaquín Carcaño
— a transgender man — claiming that UNC employs him and that it is
discriminating against him on the basis of sex, as described in
Count 6.

(Id. ¶¶ 399–403.)
12

On

October

18,

2017,

Plaintiffs

and

Executive

Branch

Defendants filed a joint motion for the entry of a consent decree.
(Doc. 216.)

The proposed consent decree states that “[u]nder H.B.

142, and with respect to public facilities that are subject to
Executive Branch Defendants’ control or supervision, transgender
people are not prevented from the use of public facilities in
accordance with their gender identity” and that “Executive Branch
Defendants

as

used

in

this

paragraph

successors, officers, and employees.”

shall

(Id. at 5.)

include

their

Further, the

proposed consent decree states the Executive Branch Defendants
“are hereby permanently enjoined from enforcing Section 2 of H.B.
142 to bar, prohibit, block, deter, or impede any transgender
individuals

from

using

public

facilities

under

any

Executive

Branch Defendant’s control or supervision, in accordance with the
transgender individual’s gender identity” and that an individual
who uses a public facility under the control of the Executive
Branch cannot be prosecuted for the otherwise lawful use of the
facility that conforms with the individual’s gender identity.
(Id.)

Lastly, the proposed consent decree states that the parties

shall “bear their own fees, expenses, and costs with respect to
all claims raised by Plaintiffs against the Executive Branch
Defendants” and stipulates to the dismissal of the remaining claims
against the Executive Branch Defendants.

13

(Id. at 5–6.)

On

October

23,

2017,

Intervenor-Defendants6

Defendants filed separate motions to dismiss.

and

the

UNC

(Docs. 221, 222.)

These motions predominantly argue that Plaintiffs lack standing to
bring their claims and that, even if they do have standing,
Plaintiffs have failed to state their claims sufficiently to
survive the motions to dismiss.

Both motions have been fully

briefed and are ready for decision.7
235.)

Lastly,

Plaintiffs

have

(Docs. 223, 225, 233, 234,

moved

for

leave

to

file

the

declaration of Ericka Myers (Doc. 236), a mother of a transgender
student; this motion has also been fully briefed and is ready for
decision (Docs. 237, 240, 241, 242).8
II.

ANALYSIS
The court will first address the motion for leave to file the

declaration of Ericka Myers, as Plaintiffs claim that the court
should consider that declaration in connection with the motions to
dismiss.
A.

The court will then turn to the motions to dismiss.
Motion for Leave to File Declaration of Ericka Myers

In her declaration, Myers states that her eight year-old
daughter is transgender, in that “she was assigned the sex male at

6

The court granted Intervenor-Defendants’ motion to intervene (Doc. 33)
on June 6, 2016. (Doc. 44.)
7

The Executive Branch Defendants take no position with respect to the
motions to dismiss.
8

Consistent with its prior orders (Docs. 226, 228) and the requests of
counsel at the June 25, 2018 motions hearing, this order will not address
the joint motion for entry of the consent decree.

14

birth,” but “she has known from a young age that she is a girl.”
(Doc. 237–1 ¶ 4.)

Myers explains that her daughter has been

diagnosed with gender dysphoria9 and that her treatment includes
living all aspects of her life as a female. (Id. ¶¶ 5–6.) However,
her daughter’s elementary school, in the New Hanover County School
District in North Carolina, bars her daughter from using the girls’
restroom because she is transgender.

(Id. ¶¶ 3, 7.)

According to

Myers, the school’s principal has explained that this is because
she believes that HB142 makes it illegal for a transgender student
to use a restroom that does not match her birth-assigned sex — or
at least that HB142 “permits schools” to deny such use.

(Id. ¶ 9.)

While Myers’ daughter has been told that she can “use the nurse’s
restroom or the restroom in the teacher’s lounge,” she has declined
to “use either of these restrooms because she feels humiliated and
singled out as different when she is the only student forced to
use them.”

(Id. ¶ 10.)

As a result, and because boys in the boy’s

restroom have told her to “get out because she is in the wrong
place,” her daughter has “struggled to be recognized as her true
self,” “often holds her urine throughout the school day, and uses

9

Gender dysphoria occurs when a transgender individual experiences
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’ earlier unrebutted evidence that
some transgender individuals form their gender identity misalignment at
a young age and exhibit distinct “brain structure, connectivity, and
function that do not match their birth-assigned sex.” (Id. ¶¶ 18, 21–
22.)

15

the restroom as soon as she gets home.”
Plaintiffs

argue

that

the

court

(Id. ¶¶ 13–14.)
can

consider

the

Myers

declaration in resolving the pending motions to dismiss because
“[w]hen standing is raised as a basis to dismiss, the court ‘may
consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.’”

(Doc. 237 at 4 (quoting

White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir.
2005)).) Plaintiffs note that this court has considered affidavits
filed by a plaintiff to demonstrate standing in the past.

Nat’l

All. for Accessibility, Inc. v. Rite Aid of N.C., Inc., No.
1:10CV932, 2011 WL 4499294, at *5 n.5 (M.D.N.C. Sept. 27, 2011)
(“Fourth Circuit authority . . . appears to permit the use of such
affidavits . . . .”).

Plaintiffs argue that the Myers declaration

provides additional evidence that HB142 causes injury.
at 5–6.)

(Doc. 237

They also point out that no Defendant actually opposes

the request for leave to file the declaration, but instead argue
only that the court should not consider the declaration when ruling
on the motions to dismiss and that the declaration does not support
Plaintiffs’ standing claims.
The

UNC

Defendants

“do

(Doc. 242 at 1.)
not

oppose

the

filing

of

the

declaration, but do oppose Plaintiffs’ request that the Court
consider [the] declaration when ruling” on their motion to dismiss.
(Doc. 240 at 1.)

They argue that extrinsic evidence, such as that

presented in the Myers declaration, is not relevant to their motion
16

to dismiss, as “[t]he question before the Court is . . . the
adequacy of the allegations in the Complaint.”

(Id. at 3.)

This

is because the UNC Defendants claim to have brought a facial
challenge to standing only, and “[a] court may ‘look beyond the
complaint’ only ‘[i]n a factual challenge.’”

(Id. at 2 (quoting

Wikimedia Found. v. NSA, 857 F.3d 193, 208 (4th Cir. 2017)).)

They

further argue that the Myers declaration is “immaterial because it
recounts events that occurred after the filing of the complaint”
and otherwise has no connection to the UNC Defendants.

(Id. at 3–

4.)
Intervenor-Defendants argue that the Myers declaration would
not help the court in determining standing because the harm
described in the declaration is caused by the officials in the New
Hanover School District, rather than by any Defendant in this case.
(Doc. 241 at 3.)

They also contend that “the mere fact that

certain school officials not before the Court may have mistakenly
identified HB 142 as a basis for their restroom policy cannot
establish that HB 142 legally caused the alleged harms, nor that
a favorable decision in this case would redress those harms.” (Id.
at 4.)
The Fourth Circuit recently explained the distinction between
facial and factual challenges to standing as follows:
In a facial challenge, the defendant contends that the
complaint fails to allege facts upon which standing can
be based, and the plaintiff is afforded the same
17

procedural protection that exists on a motion to
dismiss. In a factual challenge, the defendant contends
that the jurisdictional allegations of the complaint are
not true. In that event, a trial court may look beyond
the complaint and in an evidentiary hearing determine if
there
are
facts
to
support
the
jurisdictional
allegations.
Wikimedia, 857 F.3d at 208 (citations, internal quotation marks,
and alterations omitted).

In a facial challenge, accordingly,

where the plaintiff receives the presumption that all facts alleged
in the complaint are true, the sole question before the court is
whether “the complaint alleges sufficient facts to invoke subject
matter jurisdiction.”

Kerns v. United States, 585 F.3d 187, 192

(4th Cir. 2009) (emphasis added).
hearing

for

a

factual

challenge,

It is only in an evidentiary
where

“the

presumption

of

truthfulness normally accorded a complaint’s allegations does not
apply,” that “the trial court [has] the discretion to go beyond
the allegations of the complaint . . . [to] determine if there are
facts

to

support

the

jurisdictional

allegations.”

Beck

v.

McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (citations and internal
quotation marks omitted).
Neither Intervenor-Defendants nor the UNC Defendants base
their arguments for dismissal for lack of standing on the falsity
of any jurisdictional facts alleged by Plaintiffs.

Instead, they

argue that the complaint on its face simply lacks allegations
establishing standing. As a result, the present motions to dismiss
for lack of standing are facial challenges to standing, and the
18

court will not consider the Myers declaration in resolving them.10
See N.C. Fisheries Ass’n, Inc. v. Pritzker, No. 4:14-CV-138-D,
2015 WL 4488509, at *3 (E.D.N.C. July 22, 2015) (“[B]ecause this
is a facial challenge, the court will consider only the amended
complaint and its attached materials, and any documents attached
to the motion to dismiss that are integral to the complaint and
authentic.”).
B.

Motion to Dismiss HB142 Claims for Lack of Standing

“It

is

well

jurisdictional

established

issue

that

that

must

standing

be

determined

is

a

first

threshold
because

‘[w]ithout jurisdiction the court cannot proceed at all in any
cause.’”

Covenant Media of N.C., L.L.C. v. City of Monroe, 285 F.

App’x 30, 34 (4th Cir. 2008) (quoting Steel Co. v. Citizens for a
Better

Env’t,

523

U.S.

83,

94

(1998)).

The

basic

standing

requirements are that a plaintiff must show that: (1) he or she
has suffered an “injury in fact,” (2) the injury is “fairly . . .
trace[able] to the challenged action of the defendant,” and (3) it
is “likely” that “the injury will be redressed by a favorable
decision.”
(1992)

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(citations

and

internal

quotation

marks

omitted)

(alteration and omission in original).
10

Even if the court were to consider it, the Myers declaration does not
provide any appreciable support for Plaintiff’s position on standing,
given that it is based on hearsay and indicates only a third party’s
interpretation of HB142, rather than evidence as to the actual meaning
of HB142.

19

The injury in fact “requirement ensures that plaintiffs have
a ‘personal stake in the outcome of the controversy.’”

Kenny v.

Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (citing Warth v. Seldin,
422 U.S. 490, 498 (1975)).
a

legally

protected

particularized’
hypothetical.’”

and

An injury in fact is “‘an invasion of

interest’

‘actual

or

that

imminent,

is

‘concrete

and

not

conjectural

or

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548

(2016) (quoting Lujan, 504 U.S. at 560).

“An allegation of future

injury may suffice if the threatened injury is certainly impending,
or there is a substantial risk that the harm will occur.”

Susan

B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (citation
and internal quotation marks omitted).

When plaintiffs seek

prospective relief, they must establish an ongoing or imminent
injury in fact.

O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).

At bottom, Plaintiffs allege that they have been injured in
two distinct ways: (1) HB142 leaves them uncertain as to which
restrooms or related facilities they are permitted to use, and (2)
HB142 creates a barrier which prevents them from being able to
petition their local governments for protective ordinances, and
which causes them to be regulated unequally by state entities such
as UNC.

The court will address standing as to each claimed injury

in turn.

20

1.

Injury by Uncertainty

Plaintiffs’ first alleged injury is that they are unable to
use public restrooms and accommodations because they are uncertain
about which restrooms they are permitted to use and that this
uncertainty creates a reasonable fear of prosecution for seconddegree trespass.11

(See Doc. 210 ¶¶ 302–12.)

Since HB142 has no

enforcement mechanism — and indeed does not prohibit any possible
course of conduct on the part of Plaintiffs — Plaintiffs rely on
a theory of injury wherein HB142’s preemption of regulation of
restroom access “except in accordance with an act of the General
Assembly,” along with the fact that there is no applicable act of
the General Assembly affirmatively permitting access, “creat[es]
a permanent state of legal uncertainty” (id. ¶ 312) that makes it
impossible for transgender individuals to determine whether they
will be prosecuted under other statutes, such as North Carolina’s
second-degree trespass law (id. ¶¶ 302–12); see also N.C. Gen.
Stat. § 14-159.13.12
Intervenor-Defendants argue principally that (1) uncertainty
about the law alone does not create an actionable injury; (2)

11

Although Plaintiffs hint vaguely at fear of prosecution under other
state laws (see, e.g., Doc. 210 ¶ 307 (alleging fear of “criminal or
other penalty”)), the only state law they specify as relevant to their
due process claim is the second-degree trespass statute (id. ¶ 306).
12

In addition, under Section 3, local governments are precluded from
passing any new or amended ordinances regulating public accommodations
or private employment regardless of whether or not such ordinances would
be “in accordance with an act of the General Assembly.” HB142 § 3.

21

Plaintiffs’ choice not to use government restrooms is a “selfinflicted injury” that cannot give rise to standing, as Plaintiffs
have no credible fear of prosecution; and (3) HB142 is not vague
— it repeals HB2, preempts state agencies from regulating access
to multiple occupancy restrooms, showers, or changing facilities,
and

preempts

local

governments

from

enacting

or

amending

ordinances regulating public accommodations and private employment
practices.

(Doc. 234 at 2–7.)

The UNC Defendants similarly argue that (1) Plaintiffs do not
actually face uncertainty as a result of HB142; (2) even if they
did, uncertainty about the meaning of a law is not an injury in
fact; and (3) anxiety about the application of state trespass laws
does not establish standing to bring claims against HB142.13

(Doc.

223 at 8–12.)
In certain circumstances, a plaintiff’s allegations of fear
of future prosecution may satisfy the injury-in-fact requirements
for prospective relief:
[T]here is a sufficiently imminent injury in fact if
plaintiffs allege an intention to engage in a course of
conduct
arguably
affected
with
a
constitutional
interest, but proscribed by a statute, and there exists
a credible threat of prosecution thereunder.
[I]t is
not necessary that [a plaintiff] first expose himself to
actual arrest or prosecution to be entitled to challenge

13

The UNC Defendants also argue that the court’s justiciability analysis
in an earlier order dealing with HB2 (Doc. 127) militates against the
conclusion that Plaintiffs have standing to bring claims against the UNC
Defendants here (Doc. 223 at 13–14).

22

a statute that he claims deters the exercise of his
constitutional rights.
Kenny, 885 F.3d at 288 (citations and internal quotation marks
omitted) (second and third alterations in original).14

Whether the

injury is alleged to be sufficiently imminent or an ongoing injury
in

fact,

Plaintiffs

must

show

that

their

fear

of

criminal

prosecution is “not imaginary or wholly speculative” in order for
that fear to give rise to standing.

Babbitt v. United Farm Workers

Nat’l Union, 442 U.S. 289, 302 (1979).

In all cases of this type,

then, the threat of prosecution must be
“immediate.”

both “credible”

and

EQT Prod. Co. v. Wender, 191 F. Supp. 3d 583, 591

(S.D. W. Va. 2016), aff’d, 870 F.3d 322 (4th Cir. 2017) (citations
omitted); see also id. (noting that a plaintiff must “show more
than the fact that state officials stand ready to perform their
general duty to enforce laws” (quoting Doe v. Duling, 782 F.2d
1202, 1206 (4th Cir. 1986))).

For the standing analysis, as with

the other bases for Defendants’ motions to dismiss, the court
“accept[s] all properly pled factual allegations in the complaint

14

In the same case, the Fourth Circuit noted a second method of
establishing injury in fact: a “sufficient showing of self-censorship,
which occurs when a claimant is chilled from exercising his right to
free expression.” Kenny, 885 F.3d at 288 (quoting Cooksey v. Futrell,
721 F.3d 226, 235 (4th Cir. 2013)). As its wording makes clear, this
latter standard for an ongoing (as opposed to imminent) injury in fact
is confined to First Amendment cases, where the “standing requirements
are somewhat relaxed.”
Cooksey, 721 F.3d at 235.
The standard for
ongoing injury in fact in non-First Amendment cases based on a fear of
future government action is explained in Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013), and is discussed and applied below.

23

as true and construe[s] all facts in the light most favorable to
the plaintiff.”

Doe v. Va. Dep’t of State Police, 713 F.3d 745,

752 (4th Cir. 2013).
Here,

Plaintiffs

fail

to

demonstrate

that

their

claims

against HB142 based on legal uncertainty meet any of the three
bases for standing.
As to the alleged injury in fact, the court first notes that
HB142 says nothing about Plaintiffs’ ability to use any facility
of any kind, nor does it regulate Plaintiffs in any other way.
This accords with the statement of Governor Cooper, quoted in the
Fourth

Amended

Complaint,

that

there

is

currently

“no

North

Carolina state law barring the use of multiple occupancy bathroom
facilities in accordance with gender identity.”

(Doc. 210 ¶ 15.)

Plaintiffs respond by alleging a credible fear of prosecution under
other state statutes — namely, the second-degree trespass statute.
See N.C. Gen. Stat. § 14-159.13.

This argument could certainly

have been made during the time that HB2 was in force, since HB2
gave legal import to the gender-specific placards on bathroom
doors.

(See Doc. 127 at 25–27 (“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 [HB2].”
26.).)

Id. at

Under HB2, multiple occupancy bathrooms were required to

be designated for use only by persons of the same “biological sex,”
where that term was defined as “[t]he physical condition of being
24

male or female, which is stated on a person’s birth certificate,”
HB2 §§ 1.2–1.3.

But HB2 has been repealed.

Its replacement,

HB142, requires nothing of the kind.
Indeed, HB142 returns Plaintiffs to the status quo ante — the
very position that, until now, they have consistently asserted to
be their preferred remedy in this case.

(Doc. 103 at 6–8, 20

(stating at preliminary injunction hearing that “[t]here was no
record prior to the passage of [HB2] of problems being caused in
North Carolina . . . by transgender people using restrooms and
changing facilities consistent with their gender identity,” that
“the status quo was fine,” and that “[t]he status quo was working
for transgender people in that they . . . could use common sense”
about which restrooms to use).)

Plaintiffs’ repeated assertions

along these lines also accord with their inability to cite a single
case in North Carolina of a transgender individual being prosecuted
for using the restroom that corresponded to his or her gender
identity,

despite

the

fact

that

at

least

“some

transgender

individuals have been quietly using bathrooms and other facilities
that match their gender identity” for years.

(Doc. 127 at 3.)

Given that HB142 repealed HB2 and its biological-access language,
the status quo that the Plaintiffs requested — at least insofar as
it relates to state and local interpretation of legal access to
gender-specific restrooms — has been restored.

The relief sought

by Plaintiffs earlier in this litigation cannot now transform into
25

an injury in fact that gives rise to standing.
In response, Plaintiffs argue that as a result of the series
of events giving rise to (and including) this litigation, there is
a heightened political animosity towards transgender individuals
regarding their access to bathrooms, such that the likelihood of
the State’s trespass laws being used against them has increased.
Along these lines, Plaintiffs point to statements of certain
legislators and politicians who have claimed that the State’s
trespass

laws

prohibit

transgender

matching one’s biological sex.
What

this

argument

access

to

restrooms

not

(Doc. 210 ¶¶ 74, 246.)

attempts

to

do,

however,

is

graft

Plaintiffs’ fears about the State’s enforcement of its trespass
laws onto HB142.

As an initial matter, it is far from clear that

such a threat is sufficiently imminent.

As noted above, Governor

Cooper has represented the opposite conclusion (id. ¶ 15.), and
he, the Attorney General, and the rest of the Executive Branch
Defendants are urging the entry of a consent decree in this action
that would expressly and permanently preclude their prosecution of
a transgender individual for “us[ing] public facilities . . . when
such use conforms with the individual’s gender identity, and is
otherwise lawful.”

(Doc. 216-1 at 5 (also requesting that it be

ordered and adjudged that “[u]nder H.B. 142, and with respect to
public facilities that are subject to Executive Branch Defendants’
control or supervision, transgender people are not prevented from
26

the use of public facilities in accordance with their gender
identity”).)

In addition, and independent of any consent decree

request,

Governor

the

has

already

issued

an

Executive

Order

providing — among other protections — that “State agencies, boards,
commissions, and departments under the jurisdiction of the Office
of the Governor will not adopt policies or regulations barring,
prohibiting, blocking, deterring, or impeding any individual who
lawfully

uses

supervision,
identity.”15

public

in

facilities

accordance

N.C.

Exec.

with
Order

under
that
No.

their

control

individual’s
24

(Oct.

18,

or

gender
2017)

(https://files.nc.gov/governor/documents/files/EO24Policies%20Prohibiting%20DiscriminationHarassment%26Retaliation%
20in%20State%20EmploymentServicesContracts.pdf).
To the extent Plaintiffs attempt to characterize their injury
not as imminent (the future prosecution itself) but as ongoing
(see, e.g., Doc. 210 ¶ 282 (describing Plaintiffs’ current delay
and avoidance of restroom use — in fear of future prosecution —
and noting the potentially “severe health consequences” of such

15

The Executive Order also states that it “is subject to and does not
otherwise conflict with or abrogate existing state law.” The court takes
judicial notice of the Executive Order pursuant to Rule 201(b) of the
Federal Rules of Evidence. See Clatterbuck v. City of Charlottesville,
708 F.3d 549, 557 (4th Cir. 2013) (noting that, on a motion to dismiss,
“courts may consider ‘relevant facts obtained from the public record,’
so long as these facts are construed in the light most favorable to the
plaintiff along with the well-pleaded allegations of the complaint”
(quoting Papasan v. Allain, 478 U.S. 265, 283 (1986))), abrogated on
other grounds by Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).

27

measures)), this characterization necessarily “fares no better.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 415 (2013).

The

Supreme Court has been clear that plaintiffs cannot bootstrap their
way to an injury in fact by harming themselves in the present when
the future prosecution they allegedly fear is not sufficiently
imminent.

See

id.

at

416

(“[Plaintiffs]

cannot

manufacture

standing merely by inflicting harm on themselves based on their
fears

of

hypothetical

future

harm

that

is

not

certainly

impending.”).
Moreover, even if the court were to assume that Plaintiffs
allege

a

sufficient

injury

in

16

fact,16

Plaintiffs

fail

to

It is important to note that Plaintiffs expressly “do not challenge”
the use of gender-specific signs outside of restrooms and other
facilities. (Doc. 210 at 102 n.1.) Nevertheless, they argue that such
signs are sufficient under North Carolina law to provide “notice not to
enter the premises,” N.C. Gen. Stat. § 14-159.13, to transgender
individuals attempting to use the restroom corresponding with their
gender identity, thus exposing transgender individuals to prosecution
for trespass. (Doc. 233 at 30–32.) In support of this proposition they
cite In re S.M.S., 675 S.E.2d 44 (N.C. Ct. App. 2009). In that case, a
high school boy “r[a]n through” a girls’ locker room, causing
considerable havoc and leading to his subsequent prosecution for seconddegree trespass. Id. at 44–45. The North Carolina Court of Appeals
held that a “sign marked ‘Girl’s Locker Room,’” in conjunction with the
defendant’s “admission that he violated school rules by entering the
girls’ locker room” “was reasonably likely to give respondent notice
that he was not authorized to go into the girls’ locker room, pursuant
to [the second-degree trespass statute].” Id. at 46. The court need
not speculate on how a North Carolina court would address this issue in
the context of individuals using bathrooms in accordance with their
gender identity, were such an issue to ever arise. Suffice it to say
that the defendant in S.M.S. made no argument that he was attempting to
use a facility aligned with his gender identity (in fact, it does not
appear that he intended to “use” the facility in any ordinary or relevant
sense), and he admitted knowledge that his entry into the girls’ locker
room was against school rules. Moreover, at the hearing on the present
motions, the UNC Defendants expressly disclaimed the ability to regulate,

28

sufficiently allege that such an injury is fairly traceable to any
act by any Defendant.

To meet the traceability requirement, an

injury must be “fairly . . . trace[able] to the challenged action
of the defendant,” as opposed to “result[ing] from the independent
action of some third party not before the court.”
Welfare Rights Org., 426 U.S. 26, 41–42 (1976).

Simon v. E. Ky.

“The traceability

requirement ensures that it is likely the plaintiff’s injury was
caused by the challenged conduct of the defendant.”

Friends for

Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002)
(emphasis added).
HB142 does not regulate restroom access in any fashion;
indeed, it prohibits such regulation “except in accordance with an
act of the General Assembly.”
fear

that

some

other

(Doc. 210 at ¶ 312.)

law

will

be

enforced

If Plaintiffs
against

them

unconstitutionally, their remedy is to challenge that law — either
facially or as applied to them.
In addition, as to their constitutional claims, Plaintiffs
fail to show that any alleged uncertainty injury — i.e., the
potential enforcement of some other law against them — could be
redressed by a favorable decision of this court.

As it pertains

to those claims, the Fourth Amended Complaint simply pleads for

by institutional rule or policy, whether transgender individuals may use
restrooms that align with their gender identity, as a result of HB142’s
prohibition on such regulations.

29

this court to strike down HB142 and/or find it unenforceable
against Plaintiffs. Even if the court granted this relief in full,
it would not redress Plaintiffs’ stated fears about the application
of state trespass laws against them.
For

all

these

reasons,

therefore,

the

court

finds

that

Plaintiffs have failed to plausibly allege an injury in fact fairly
traceable to an act of any Defendant that is capable of being
redressed by a favorable decision of this court in this case.
Plaintiffs’ constitutional claims based on a theory of legal
uncertainty must therefore be dismissed.
Plaintiffs’ Title IX (Count 6) and Title VII (Count 7) claims
against UNC are similarly based on the theory that Plaintiffs are
harmed by UNC’s failure to take action to ensure that Plaintiffs
may use restrooms and changing facilities consistent with their
gender identity.

(Doc. 210 ¶¶ 395–98, 403.)

Having found that

this alleged uncertainty does not create an injury in fact, the
court finds that UNC has not harmed Plaintiffs by refusing to take
the affirmative step of informing Plaintiffs that they will not be
subject to prosecution for using the restroom that aligns with
their

gender

identity.

This

conclusion

is

bolstered

by

representations by UNC Defendants’ counsel at the motion hearing
that they consider themselves preempted by HB142 from regulating
individuals’ access to restrooms consistent with their gender
identity.

As a result, Plaintiffs’ Title IX and Title VII claims
30

will also be dismissed for lack of standing.
2.

Injury by Preemption of Non-Discrimination Policies
and Ordinances

Plaintiffs’ second claim of injury is that they are harmed by
HB142’s Section 2, which preempts regulation concerning access to
restrooms and other facilities by state agencies, departments, and
other political subdivisions of the State of North Carolina, as
well

as

by

Section

3’s

preemption

of

new

or

amended

local

government ordinances regulating access to public accommodations
and private employment practices.

(Id. ¶¶ 313–44.)

Plaintiffs

argue that these barriers prevent transgender individuals from
being able to access the legislative process and petition their
local governments, as well as school boards, universities, and
other branches of government, for non-discrimination protections.
(Doc. 233 at 20–21.) They argue that these barriers are themselves
injuries in fact. (Id. at 20 (“Encountering the barrier is the
injury that confers standing.”).)
Intervenor-Defendants argue that Plaintiffs still have the
right to advocate for their preferred policies at the state level
under HB142, even if they will not be able to affect policy change
at the local level, and that HB142 does not create an unequal
barrier for Plaintiffs because anyone trying to enact a policy
regulating private employment practices or public accommodations,
or attempting to persuade a state agency to regulate access to

31

restrooms, will face the same barriers Plaintiffs face.

(Doc. 234

at 5–6.)
The UNC Defendants argue that HB142 — and thus the barriers
about which Plaintiffs complain — is not traceable to them because
the “University and President Spellings neither drafted, proposed,
voted on, passed, enacted, signed, nor ratified HB 142.
they have the legal power to ‘clarify’ it.”

Nor do

(Doc. 223 at 10.)17

Generally, if a plaintiff can demonstrate that he or she has
the intention to take a particular lawful action that “has been
thwarted

by

official

action”

that

was

discriminatory,

plaintiff has demonstrated an injury in fact.

that

See Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264
(1977) (finding that a plaintiff had standing to bring a claim
when the “injury [he] assert[ed] [wa]s that his quest for housing
nearer his employment ha[d] been thwarted by official action that
[wa]s racially discriminatory”).

Further, the denial of equal

treatment resulting from the imposition of a barrier that makes it
more difficult for a certain class of people to receive a benefit
than for those outside that class may create an injury in fact.
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 666 (1993).

17

It is not necessary for

Although the UNC Defendants argue generally on behalf of both the
University and President Spellings, Plaintiffs’ equal protection claims
(Count 2) are only brought against President Spellings.

32

a plaintiff to show that he or she would have received a certain
benefit in order for that plaintiff to show an injury in fact by
way of a government barrier to seeking — or to seeking on “equal
footing” with members of other groups — the receipt of that
benefit.

Id. (“When the government erects a barrier that makes it

more difficult for members of one group to obtain a benefit than
it is for members of another group, a member of the former group
seeking to challenge the barrier need not allege that he would
have obtained the benefit but for the barrier in order to establish
standing.”).
Viewed in the light most favorable to Plaintiffs, the Fourth
Amended Complaint alleges an injury in fact on Plaintiffs’ equal
protection claim. First, Plaintiffs claim that, if not for HB142’s
prohibition

on

local

regulations,

they

“would

anti-discrimination
advocate

for

local

ordinances

and

ordinances

that

prohibit discrimination in employment and public accommodations
based on sexual orientation and gender identity.” (Doc. 210 ¶¶ 83,
121, 156, 170, 192.)

Second — although they need not show this in

order to adequately demonstrate standing — Plaintiffs have claimed
that

at

least

some

of

the

localities

where

they

reside

(specifically, Carrboro, Chapel Hill, and Orange County) would
pass ordinances that “prohibit discrimination in employment and
public accommodations on the basis of sexual orientation and gender
identity” if they were permitted to do so.
33

(Id. ¶¶ 81, 170, 190.)

Finally, Plaintiffs allege that HB142 discriminates against them
on the basis of their transgender status.

(Id. at 278.)

Just as

a plaintiff in Arlington Heights demonstrated an injury in fact by
asserting that his attempt to find housing closer to his employment
was thwarted by discriminatory official action, Plaintiffs here
assert that HB142 has thwarted their attempts to lobby for, and
receive the benefits of, protective ordinances or regulations.
See 429 U.S. at 264.
efforts

at

advocacy,

While HB142 does not prohibit Plaintiffs’
it

plainly

makes

them

meaningless

prohibiting even the prospect of relief at the local level.

by

Thus,

HB142’s preemption of local regulation of public accommodations
and private employment practices, as well as agency regulation of
access to bathrooms and other facilities, creates an injury in
fact as to Plaintiffs. Northeastern, 508 U.S. at 666 (“The ‘injury
in fact’ in an equal protection case of this variety is the denial
of equal treatment resulting from the imposition of the barrier.”).
Intervenor-Defendants

contend

that

Plaintiffs

have

no

“legally protected interest” in lobbying for local protective
ordinances or regulations (Doc. 225 at 6), and they cite the Fourth
Circuit’s decision in Friends for Ferrell Parkway, LLC v. Stasko,
282 F.3d 315 (4th Cir. 2002) in support of the proposition that
“the destruction of [plaintiffs’] opportunities to lobby for” a
benefit is not an injury in fact.
an equal protection case.

Id. at 324.

But Stasko was not

In Stasko, a proposed acquisition of
34

land by the U.S. Fish and Wildlife Service — in alleged violation
of certain environmental and other statutes — would have precluded
the potential construction of a parkway on that land.
19.

Id. at 318–

The plaintiffs there argued that the deprivation of the

opportunity to lobby for such a parkway, which would bring them
economic benefits if constructed, was an injury in fact.

The

Fourth Circuit rejected this alleged injury because the likelihood
of the parkway being built was too “remote.”

Id. at 325.

As the

court noted: “[P]laintiffs cannot sidestep the requirements for
standing by recharacterizing a wholly speculative injury as a
diminished opportunity to prevent that injury when the facts reveal
the ‘opportunity’ itself to be just as tenuous.”

Id. at 324.

In the instant case, however — as with equal protection cases
of this type — Plaintiffs are not merely “recharacterizing” one
injury (here, the lack of anti-discrimination ordinances) as a
diminished opportunity to prevent that injury through lobbying.
The Supreme Court has made clear that “the imposition of the
barrier” is itself the injury in “equal protection case[s] of this
variety,” not the plaintiff’s “ultimate inability to obtain the
benefit.”

Northeastern, 508 U.S. at 666; see Regents of Univ. of

Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (finding sufficient
injury in fact “in the University’s decision not to permit [the
plaintiff] to compete for all 100 places in the class” and noting
that “even if [the plaintiff] had been unable to prove that he
35

would have been admitted in the absence of the [barrier], it would
not follow that he lacked standing”).18
Intervenor-Defendants finally contend that HB142 cannot cause
Plaintiffs a “particularized” injury, Spokeo, 136 S. Ct. at 1548,
since HB142 “also forecloses proponents of [HB2’s] now-repealed
biological-access policy from seeking to enact it at the agency or
local level.”

(Doc. 225 at 5 n.4).

But this argument again

ignores those equal protection cases based on facially neutral
laws.

It is definitionally the case that a facially neutral law

will, “on its face,” treat all citizens “in an identical manner.”
Hunter v. Erickson, 393 U.S. 385, 391 (1969).

But in the instant

case, Plaintiffs allege that “the reality is that the law’s impact
falls on the minority.”
biological-access

Id.

advocates,

It is transgender individuals, not
who

allege

denial

of

the

equal

protection of the laws. See id. (“The majority needs no protection
against discrimination.”).
advocates

may

have

other

To the extent that biological-access
complaints

18

about

HB142’s

preemption

Even if the court were to look through the imposition of the barrier
to Plaintiffs’ likelihood of gaining the benefit itself, IntervenorDefendants’ argument fails.
Unlike in Stasko, where the plaintiffs’
hoped-for achievement of their desired benefit was “pure conjecture” and
was based on “numerous, questionable assumptions” that were in opposition
to “[s]ubstantial evidence in the record,” 282 F.3d at 323, here
Plaintiffs point out that Charlotte had previously adopted just the sort
of anti-discrimination ordinance Plaintiffs desire; in fact, it was that
ordinance that sparked both HB2 and this litigation. Plaintiffs allege
in effect that, if not for HB142 (and certainly HB2 before it), the
Charlotte ordinance may still be in effect. (Doc. 210 ¶¶ 226–28, 233,
330.)

36

provisions,

those

complaints

do

not

preclude

transgender

individuals from asserting a particularized injury.

See id. at

390–91 (“It is true that [the challenged law] draws no distinctions
among racial and religious groups.

Negroes and whites, Jews and

Catholics are all subject to the same requirements if there is
housing discrimination against them which they wish to end.

But

[the challenged law] nevertheless disadvantages those who would
benefit

from

laws

barring

racial,

religious,

or

ancestral

discriminations . . . .”).
Plaintiffs have also adequately alleged traceability as to
the Executive Branch Defendants, although not as to President
Spellings.
easily

met

As to the Executive Branch Defendants, traceability is
given

that

(1)

HB142

is

the

sole

cause

of

the

prohibition on new or amended local non-discrimination ordinances
and agency regulation of restroom access; (2) HB142 was negotiated
for and signed by Governor Cooper; and (3) the Executive Branch
Defendants are tasked with enforcing and upholding the law.
210 ¶¶ 226, 229, 244.)

(Doc.

See Mich. Bldg. & Const. Trades Council,

AFL-CIO v. Snyder, 846 F. Supp. 2d 766, 777–78 (E.D. Mich. 2012)
(“The Court finds that the alleged injuries are fairly traceable
to the Defendant.

As Governor of Michigan, Defendant signed the

Act into law and is responsible for its enforcement. . . .
Plaintiffs’ alleged injuries are directly traceable to the Act .

37

. . .”).19
However,

traceability

fails

with

respect

to

President

Spellings because she had and has nothing to do with the drafting,
passage, or enforcement of HB142.20

The injury relevant to this

equal protection claim is Plaintiffs’ effective preclusion under
HB142 from advocating for certain anti-discrimination protections
from entities like UNC, not the actual denial of such protections
on the part of UNC.

President Spellings has done nothing to deny

Plaintiffs the opportunity to advocate for anti-discrimination
protections relating to transgender bathroom access.

Instead,

President Spellings has only declined to give Plaintiffs the
affirmative permission they request; as discussed above, this is

19

Further, no party has directly argued that Plaintiffs’ equal protection
claims are not traceable to the Executive Branch Defendants on the ground
their connection to the passage of HB142 is too attenuated. The mere
signature of a governor on a bill and his general duty to enforce state
laws is not always sufficient for the law’s impact to be traceable to
the Executive Branch. See Greater Birmingham Ministries v. Alabama, No.
2:15-CV-02193-LSC, 2017 WL 782776, at *5–7 (N.D. Ala. Mar. 1, 2017)
(finding that a challenged statute was not traceable to the governor who
signed the bill into law but was not “sufficiently responsible for [its]
administration”); NAACP v. California, 511 F. Supp. 1244, 1261–62 (E.D.
Cal. 1981), aff’d, 711 F.2d 121 (9th Cir. 1983) (finding that a
challenged constitutional amendment was not traceable to the governor
who signed the legislation proposing the amendment because the effect
of his signature was only to put the amendment on a ballot where voters
would decide whether the amendment should go into effect).
In the
instant case, however, Governor Cooper signed HB142 directly into law,
appears to have been involved in the negotiations that led to its
passage, and is presumably authorized to enforce it. (Doc. 210 ¶¶ 226,
229, 244). Thus, HB142’s prohibitions are sufficiently traceable to him
and the other Executive Branch Defendants.
20

As previously stated, HB142 does not regulate individuals, nor does
it empower or require other parties to regulate individuals.
As a
result, President Spellings cannot enforce HB142 against Plaintiffs.

38

not an injury in fact.

As a result, since it cannot fairly be

said that Plaintiffs’ injuries relating to preemption of advocacy
for anti-discrimination protections were “caused by” President
Spellings’ conduct, Stasko, 282 F.3d at 320, the equal protection
claim brought in Count 2 against President Spellings should be
dismissed.
Finally, the court finds that Plaintiffs have adequately
shown redressability.

While a merely “speculative” claim of

redressability is insufficient, Plaintiffs need only show that
that their alleged injury is “likely . . . [to] be redressed by a
favorable decision.” Lujan, 504 U.S. at 561 (citation and internal
quotation

marks

omitted)

(emphasis

added).

“[N]o

explicit

guarantee of redress to a plaintiff is required to demonstrate a
plaintiff’s standing.”

Equity in Athletics, Inc. v. Dep’t of

Educ., 639 F.3d 91, 100 (4th Cir. 2011).

Here, in so far as

Plaintiffs’ alleged injury is the barrier to anti-discrimination
advocacy created by HB142, and because the court has the power to
enjoin

the

enforcement

of

HB142,

Plaintiffs

have

adequately

demonstrated that a favorable decision of this court is likely to
provide them with the relief they seek.
As a result, the court finds that the Plaintiffs have standing
to bring their Count 2 equal protection claim against the Executive
Branch Defendants.

39

C.

Motion to Dismiss HB2 Claims for Lack of Ripeness

Counts 3, 4, and 5 of the Fourth Amended Complaint challenge
HB2.

Plaintiffs contend that they have “adequately pled plausible

claims that HB142 is invalid, leaving open the possibility that
the HB2 claims will require resolution” in the event that HB142 §
1 is struck down and HB2 goes back into effect.

(Doc. 233 at 45–

46.)
Intervenor-Defendants argue that Plaintiffs’ claims against
HB2

are

not

ripe

because

those

claims

“depend

answering a whole host of preliminary questions.”
11.)

on

the

Court

(Doc. 234 at

In order for Plaintiffs’ claims against HB2 to be ripe, they

argue, the court would first need to decide that “(1) one or more
provisions of HB 142 are unlawful and (2) the provision of HB 142
repealing HB 2 is not severable from HB 142’s unlawful provisions.”
(Doc. 225 at 22.)

Plaintiffs argue that while the court need not

consider their claims challenging HB2 in Counts 3, 4, and 5 at
this time, they remain ripe.
Ripeness is a threshold issue and bids the court consider
whether “[a] claim . . . rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.”
Texas v. United States, 523 U.S. 296, 300 (1998) (citation and
internal quotation marks omitted).

“Where an injury is contingent

upon a decision to be made by a third party that has not yet acted,
it is not ripe as the subject of decision in a federal court.”
40

Doe v. Virginia Dep’t of State Police, 713 F.3d 745, 758 (4th Cir.
2013)

(citation

omitted).

To

determine

ripeness,

the

court

“balance[s] the fitness of the issues for judicial decision with
the hardship to the parties of withholding court consideration.”
Id. (citation omitted).
While any challenge to HB2 is currently premature, Defendants
have not demonstrated that such claims should be dismissed on
ripeness grounds.

Contingencies dependent on the future actions

of third parties are generally too attenuated to be ripe, but the
court itself is not a third party.

Should Plaintiffs succeed on

their remaining claims against HB142, there is a possibility —
however remote — that the court will be required in this action to
address Plaintiffs’ alternative claims against HB2.

Defendants’

motion to dismiss on ripeness grounds will therefore be denied at
this time.21

See Dimensional Music Publ’g, LLC v. Kersey ex rel.

Estate of Kersey, 448 F. Supp. 2d 643, 653 (E.D. Pa. 2006) (“Simply
because the outcome of one claim is contingent upon the outcome of

21

Intervenor-Defendants (Doc. 225 at 10–11) and the UNC Defendants (Doc.
223 at 14–16) also argue that Plaintiffs’ HB142 claims should be
dismissed on ripeness grounds. Intervenor-Defendants’ arguments appear
to be directed at Plaintiffs’ claims based on legal uncertainty, not
their claims based on preemption of non-discrimination policies and
ordinances. (Doc. 225 at 10–11 (“Plaintiffs cannot solve this [ripeness]
issue by relying on their alleged uncertainty about the applicable law.”
Id. at 11.).) Because the court has already found that Plaintiffs lack
standing to pursue their legal uncertainty claims, IntervenorDefendants’ ripeness arguments as to HB142 need not be reached.
Similarly, because all of Plaintiffs’ claims against the UNC Defendants
based on HB142 are dismissed pursuant to this order, the UNC Defendants’
ripeness arguments as to HB142 also need not be reached.

41

another claim in the case does not mean that the first claim cannot
be alleged or that the first claim is not ripe.” (citations
omitted)).
D.
A

Motion to Dismiss for Failure to State a Claim
motion

Procedure

to

dismiss

12(b)(6)

complaint.”

pursuant

“challenges

to

the

Federal

legal

Rule

of

sufficiency

Civil
of

a

Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.

2009) (citation omitted).

A complaint that does not contain

“sufficient factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face’” must be dismissed. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly,

550

U.S.

544,

570

(2007)).

“A

claim

has

facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Id. (citation omitted). “The

plausibility standard requires a plaintiff to demonstrate more
than ‘a sheer possibility that a defendant has acted unlawfully.’”
Giacomelli, 588 F.3d at 193 (quoting Iqbal, 556 U.S. at 678.)
assessing

the

legal

sufficiency

of

a

complaint,

the

In

factual

allegations must be construed in the light most favorable to the
plaintiff.

Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009).

However, “‘[t]he presence [ ] of a few conclusory legal terms does
not insulate a complaint from dismissal under Rule 12(b)(6) when
the facts alleged in the complaint’ cannot support the legal
42

conclusion.”

Gladden v. Winston Salem State Univ., 495 F. Supp.

2d 517, 521 (M.D.N.C. 2007) (quoting Young v. City of Mount Ranier,
238 F.3d 567, 577 (4th Cir. 2001)) (alteration in original).
1.

Equal Protection Claims

Plaintiffs argue that Section 2 has a disparate impact on
transgender individuals because, while it prohibits regulation of
restroom access by state agencies and various other entities, the
UNC Defendants continue to regulate access to restrooms by labeling
restrooms as for “men” and “women.”22

They argue that Section 2

creates “one rule for transgender individuals and another for nontransgender individuals” because the UNC Defendants are willing to
regulate access to restrooms in one sense, but refuse to regulate
access to restrooms in the sense of clarifying which restrooms
transgender individuals are permitted to use.
43.)

(Doc. 233 at 40,

Plaintiffs argue that Section 3 has a disparate impact on

transgender individuals because it prevents the passage of local
ordinances

that

discrimination.

would

protect

transgender

(Doc. 233 at 40–43.)

individuals

from

They argue that this

preemption has a disparate impact because pre-existing ordinances
prohibiting discrimination on the basis of race, color, religion,

22

Plaintiffs also claim that UNC Defendants are regulating access to
restrooms by providing maintenance to the restrooms, and “regulating
when and how a restroom is cleaned, or whether those with disabilities
would have access” to restrooms. (Doc. 233 at 40.) As noted previously,
Plaintiffs expressly do not challenge any Defendant’s practice of
maintaining separate men’s and women’s restrooms.
(Doc. 210 at 102
n.1.).

43

national origin, sex, or any other ground continue to be valid.
(Id. at 40.)

As such, Plaintiffs claim, they have a need to seek

protective ordinances that most others do not and that they are
disproportionately harmed by HB142’s barrier to their ability to
access the political process for greater protection.
44.)

Plaintiffs

then

argue

that

HB142

was

(Id. at 43–
passed

with

discriminatory intent because: (1) it follows, and cannot be
considered without reference to, HB2, which was passed in response
to

Charlotte’s

adoption

of

an

anti-discrimination

ordinance

protecting transgender individuals; (2) statements from certain
North Carolina legislators demonstrate that HB142 was not intended
to repeal HB2’s prohibition on transgender individuals’ restroom
use in accordance with their gender identity; (3)

HB142 was

introduced, debated, passed, and signed within a single day, which
departs

from

the

normal

procedural

sequence

and

“signals

discriminatory intent;” and (4) it has a disproportionate impact
on transgender individuals.

(Id. at 41–42.)

Intervenor-Defendants argue that Section 3 does not create a
disproportionate impact on transgender individuals because (1) it
only

“centralizes

authority

to

set

certain

access

and

non-

discrimination policies;” (2) it is a facially neutral law that
does not disproportionately burden transgender individuals, but
benefits transgender individuals by repealing HB2; and (3) it does
not impose a more burdensome political process on transgender
44

individuals because it “equally forecloses local advocacy for the
biological-access policies previously embodied in HB 2.”
225 at 13–17.)
mechanism,

so

(Doc.

They argue that Section 2 has no enforcement
Plaintiffs’

concern

that

it

is

being

enforced

disparately is misplaced, and that state agencies have not been
“regulating” restroom access in violation of HB142 by providing
separate male and female facilities. (Doc. 234 at 7.) IntervenorDefendants also argue that HB142 was not passed with discriminatory
intent, but that it was the result of “a bipartisan political
compromise bringing advantages and disadvantages for everyone”
that the court should not “second-guess.”

(Id. at 3 n.1, 8.)

A facially neutral law that has an adverse effect on a
minority group violates the equal protection clause only if it can
be shown that the law was passed with a discriminatory purpose.
See Crawford v. Bd. of Educ. of City of Los Angeles, 458 U.S. 527,
535–38 (1982); Washington v. Davis, 426 U.S. 229, 239–48 (1976);
Arlington Heights, 429 U.S. at 265 (“Proof of . . . discriminatory
intent or purpose is required to show a violation of the Equal
Protection

Clause.”).

Plaintiffs

“need

not

show

that

discriminatory purpose was the ‘sole[]’ or even a ‘primary’ motive
for the legislation, just that it was ‘a motivating factor.’” N.C.
State Conf. of NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016)
(quoting Arlington Heights, 429 U.S. at 265–66). “When considering
whether discriminatory intent motivates a facially neutral law, a
45

court must undertake a ‘sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.’”
Arlington Heights, 429 U.S. at 266).
often

be

inferred

from

the

Id. (quoting

Discriminatory intent “may

totality

of

the

relevant

facts,

including the fact, if it is true, that the law bears more heavily
on one [group] than another.” Davis, 426 U.S. at 242. But although
the fact that a facially neutral law has disparate impact on a
certain

group

is

relevant

to

the

equal

protection

analysis,

Arlington Heights, 429 U.S. at 266 (disparate impact “may provide
an important starting point”), disparate impact alone is not
sufficient to show discriminatory purpose:
[W]e have not held that a law, neutral on its face and
serving ends otherwise within the power of government to
pursue, is invalid under the Equal Protection Clause
simply because it may affect a greater proportion of one
race than of another.
Disproportionate impact is not
irrelevant, but it is not the sole touchstone of an
invidious racial discrimination forbidden by the
Constitution.
Davis, 426 U.S. at 242.

“[T]he ultimate question remains: did the

legislature enact a law ‘because of,’ and not ‘in spite of,’ its
discriminatory effect.”

McCrory, 831 F.3d at 220 (quoting Pers.

Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).
If

Plaintiffs

succeed

at

making

this

showing

of

discriminatory intent, “the court proceeds to determine whether
the disparity in treatment can be justified under the requisite
level of scrutiny.”

Morrison v. Garraghty, 239 F.3d 648, 654 (4th

46

Cir. 2001).

“The level of scrutiny depends on the type of

classification.”

Sansotta v. Town of Nags Head, 724 F.3d 533, 542

(4th Cir. 2013).
In conducting the discriminatory intent analysis, the court
uses as a guide the (nonexhaustive) factors set forth in Arlington
Heights: (1) “the [disparate] impact of the official action,” (2)
“[t]he historical background of the [challenged] decision,” (3)
“[t]he specific sequence of events leading up to the challenged
decision,” (4) “[d]epartures from the normal procedural sequence,”
and (5) “the legislative or administrative history.”

429 U.S. at

266–68.
The first conclusion the court reaches in the discriminatory
intent analysis is that Plaintiffs have failed to plausibly plead
that the preemption of regulation of access to multiple occupancy
restrooms, showers, or changing facilities in Section 2 impacts
them disproportionately.
centers

on

the

theory

Plaintiffs’ argument as to Section 2
that

providing

“separate

‘men’s’

and

‘women’s’ restrooms” by “maintaining or posting [gender-specific]
signs” constitutes regulation of bathroom access, and therefore
that transgender individuals are being treated unequally when
entities like UNC disclaim the ability to regulate bathroom access
as to transgender individuals.

(Doc. 233 at 8 n.1, 38, 43.)

But

while Plaintiffs are correct that Section 2 prevents state entities
like

UNC

from

regulating

access
47

to

restrooms,

the

court

is

unpersuaded that the mere provision of separate male and female
facilities is regulation of restroom access, in the relevant sense.
As the UNC Defendants point out, a regulation is an authoritative
rule with the force of law, and “[o]ne would not normally describe
a [gender-specific] sign outside a bathroom” as meeting this
description.

(Doc. 235.)

Although gender-specific bathroom signs

might properly have been considered to have the force of law under
HB2, which specifically gave legal import to such signs (see Doc.
127 at 26 (“[T]he meaning of those words and symbols [outside
bathrooms] has changed as a result of [HB2].”)), HB2 has been
repealed in full.

Its replacement, HB142, imbues gender-specific

bathroom signs with no such legal import.

And Plaintiffs do not

point to any institutional rule or policy on the part of UNC or
any other state entity that purports to assign legal import to
gender-specific

bathroom

signs.

Plaintiffs’

argument

also

contradicts Plaintiffs’ admission that they do not challenge the
historical convention of using “men’s” and “women’s” labels for
such facilities.

As a result, despite Plaintiffs’ claims to the

contrary, it does not appear that state entities like UNC are
“regulating” access to restrooms at all, much less regulating that
access in a way that impacts Plaintiffs disparately.
Further, as outlined earlier in this opinion, see supra Part
II.B.1.,

it

is

not

a

harm

to

Plaintiffs

that

they

lack

an

affirmative statement from the UNC Defendants that Plaintiffs are
48

permitted to use the restrooms and facilities that align with their
gender identity.
construed

to

Nothing in the language of Section 2 can be

prevent

transgender

individuals

from

using

the

restrooms that align with their gender identity, as Plaintiffs
claim some had apparently been doing successfully prior to the
passage of HB2.

(See Doc. 127 at 3, 11 (noting that the record

showed that, prior to the passage of HB2, “transgender individuals
ha[d]

been

quietly

using

facilities

corresponding

with

their

gender identity”); Doc. 103 at 70 (Governor’s counsel stating, “my
guess is that some transgender individuals will continue to use
bathrooms that they always used and nobody will know”).)

In

addition, the UNC Defendants stated at the motion hearing that
they are preempted from forbidding transgender individuals from
using the restrooms that are consistent with their gender identity.
Because Plaintiffs have not shown that Section 2 disparately
impacts them, their equal protection claim against Section 2
fails.23

See Morrison, 239 F.3d at 654 (“To succeed on an equal

protection claim, a plaintiff must first demonstrate that he has
been treated differently from others with whom he is similarly
situated.”).

23

Because Plaintiffs fail to even show a disparate impact, which is the
“important starting point” of their equal protection claim, Arlington
Heights, 429 U.S. at 266, there is no need for the court to move on to
the other Arlington Heights factors. See Sylvia Dev. Corp. v. Calvert
County, 48 F.3d 810, 825 (4th Cir. 1995) (“[A]n equal protection claim
must be rooted in an allegation of unequal treatment for similarly
situated individuals.”).

49

However, the court does find that Plaintiffs have plausibly
pleaded that the preemption of new or amended local “ordinance[s]
regulating

private

accommodations”

employment

in Section 3

practices

or

regulating

impacts them disproportionately.

Just like Section 2, Section 3 is facially neutral.
Intervenor-Defendants
normally

has

the

point

authority

public

out,
to

it

appears

centralize

its

that

Further, as
the

State

decision-making

powers by withholding the power to make certain decisions from
local governments.

See Town of Boone v. State, 369 N.C. 126, 131

(2016) (“Local political subdivisions are mere instrumentalities
of the state for the more convenient administration of local
government, whose territory and functions rest in the absolute
discretion of the state.” (citations and internal quotation marks
omitted)); see also id. (“[T]he General Assembly has long enjoyed
plenary

power

to

create

political

subdivisions

of

local

government, establish their jurisdictional boundaries, and invest
them with certain powers”).

But it is an “unremarkable principle

that the State may not alter the procedures of government to
target” vulnerable minority groups, even when that alteration
might otherwise have an equally unremarkable legal basis. Schuette
v. Coalition to Defend Affirmative Action, 572 U.S. 291, 304 (2014)
(plurality opinion); see Hunter, 393 U.S. at 392 (noting that,
while “insisting that a State may distribute legislative power as
it desires . . . may generally be true,” it is equally true that
50

such a “principle[] furnish[es] no justification for a legislative
structure

which

otherwise

would

violate

the

Fourteenth

Amendment”).
Here, while HB142 presents the same barrier to anyone else
seeking

a

protective

ordinance

as

it

does

to

transgender

individuals, Plaintiffs observe that transgender individuals have
a greater need for protective ordinances than other groups.

This

is because protective statutes and ordinances that preexist HB142
— such as Charlotte’s ordinance prohibiting discrimination on the
basis of race, color, religion, national origin, or sex — continue
to be valid.

Thus, Plaintiffs plausibly allege they lack the

protections that individuals in other vulnerable groups enjoy.
Further,

although

“equally

forecloses

Intervenor-Defendants
local

advocacy

for

protest
the

that

HB142

biological-access

policies previously embodied in [HB2]” (Doc. 225 at 16–17), it is
transgender individuals who have depended on success at the local
level

(e.g.,

the

Charlotte

ordinance)

and

biological-access

proponents who have depended on success at the state level (e.g.,
HB2).

As a result, Plaintiffs have plausibly alleged that the

foreclosure of new or amended local non-discrimination ordinances
relating to public accommodations impacts them disparately.

See

generally Hunter, 393 U.S. at 391 (“[A]lthough the law on its face
treats Negro and white, Jew and gentile in an identical manner,
the reality is that the law’s impact falls on the minority.
51

The

majority needs no protection against discrimination and if it did,
a referendum might be bothersome but no more than that.”).

As a

result, Plaintiffs plausibly allege that the inability to lobby
for,

and

receive,

greater

disparately impacts them.

protections

at

the

local

level

Cf. Romer v. Evans, 517 U.S. 620, 631–

36 (1996) (finding an equal protection violation where state
amendment

specifically

eliminated

protective

ordinances

for

homosexuals and prevented the passage of state or local laws
protective of such persons in the future).
The court also finds that — at this preliminary stage —
Plaintiffs have plausibly alleged that Section 3 was passed with
discriminatory intent sufficient to permit their equal protection
claim against that section to proceed. The first Arlington Heights
factor, which is the disparate impact of the government action,
has already been shown above. See 429 U.S. at 266. While disparate
impact is not itself determinative of discriminatory intent, it is
evidence of such intent.
The

second

Davis, 426 U.S. at 242.

Arlington

Heights

factor

is

the

“historical

background” of the challenged law, 429 U.S. at 267, which here
involves the passage of HB2. Plaintiffs allege that HB2 was passed
in

response

to

the

Charlotte

ordinance

that

granted

anti-

discrimination protections to transgender individuals (Doc. 127 at
13) which is some evidence that it — and now HB142, which similarly
precludes Charlotte-style ordinances — was motivated, at least in
52

part, by discriminatory intent.

In addition, they allege that the

General Assembly was presented with a “clean repeal” of HB2, but
chose instead to enact a law that preempted anti-discrimination
provisions.

(Doc. 210 ¶ 235.)

The third Arlington Heights factor is “[d]epartures from the
normal procedural sequence.”

429 U.S. at 267.

Here, Plaintiffs

allege that HB142 was introduced, debated, passed, signed, and
went into effect within a single day.

(Doc. 210 ¶¶ 208–20.)

To

accomplish this, the legislature used a process known as “gut and
amend,” where an existing bill that had passed one house was
stripped out and used as the vehicle for passing HB142.
¶¶ 243–45.)

While

Intervenor-Defendants

argue,

(Id.
not

unpersuasively, that this unusual procedural move was merely the
result of a “bipartisan political compromise” (Doc. 234 at 8) in
response to the immense time-pressure imposed on the State to pass
a legislative repeal of HB2,24 this argument depends on a factual
determination the court cannot make at this pleading stage, when
the facts must be viewed in the light most favorable to Plaintiffs.

24

Public backlash in response to the passage of HB2 was substantial and
included the following: the National Basketball Association announced
it would withdraw the February 2017 NBA All-Star Game from Charlotte;
various cities and states in the United States barred publicly-funded
travel to North Carolina; and an estimated $3.76 billion in economic
activity was lost.
(Doc. 210 ¶ 223.)
In addition, the National
Collegiate Athletic Association announced that “North Carolina would be
ineligible to host any championships until 2022” unless HB2 was repealed
by March 30, 2017. (Id. ¶ 241.) HB142 was passed and went into effect
on March 29, 2017. (Id. ¶ 242.)

53

El-Amin v. McDonnell, No. 3:12-CV-00538-JAG, 2013 WL 1193357, at
*4 (E.D. Va. Mar. 22, 2013) (“In short, [plaintiff] has alleged
both discriminatory intent and disparate impact, and . . . has
pleaded sufficient facts to state a claim for violation of the
Equal Protection Clause.

This conclusion has nothing to do with

the claim’s ultimate likelihood of success, on which the Court
expresses no view.

It instead has to do with the basic reality

that the Court may not weigh evidence at the motion to dismiss
stage, which is, in effect, what the defendants seek.”); Williams
v. Hansen, 326 F.3d 569, 587 (4th Cir. 2003) (King, J., dissenting)
(“Having

made

allegations

in

the

requisite

support

of

specific,

their

equal

nonconclusory
protection

factual

claim,

the

question of motive becomes one for the jury.”).
The fourth and final Arlington Heights factor is the relevant
legislative history. 429 U.S. at 268. Although Plaintiffs catalog
a variety of statements made by North Carolina legislators “in the
press and through their social media” in regard to the purpose and
effect of HB142 (Doc. 210 ¶ 246), and proceed to argue that such
statements tend to “demonstrate[] discriminatory intent” (Doc. 233
at 42), such statements are not “legislative history.”

See Sylvia

Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 819 (4th Cir. 1995)
(describing the fourth Arlington Heights factor as referencing
“contemporary statements by decisionmakers on the record or in
minutes of their meetings”

(emphasis added)).
54

As a result,

Plaintiffs have not alleged any relevant legislative history.
Nevertheless, this lack of legislative history may well be the
result of the expedited legislative process for HB142, which — as
discussed above — is itself relevant to the discriminatory intent
analysis.
limited

(See Doc. 210 ¶ 244 (“The bill was the subject of

debate

as

Assembly . . . .”).)

it

progressed

rapidly

through

the

General

In any case, Plaintiffs are not required to

show all four Arlington Heights factors in order to survive a
motion to dismiss. McCrory, 831 F.3d at 204 (noting that Arlington
Heights

merely

provides

“a

nonexhaustive

list

of

factors

to

consider in making [the discriminatory intent] inquiry”); see
Synovus Bank v. Coleman, 887 F. Supp. 2d 659, 668 (W.D.N.C. 2012)
(“[S]urviving a Rule 12(b)(6) motion remains a relatively low
bar.”)
Given that Plaintiffs have plausibly alleged three of the
four Arlington Heights factors, that the fourth factor may be of
limited use when an expedited legislative process allows for little
debate, and that Plaintiffs need only show that discriminatory
intent was one of many motivating factors for the passage of
Section 3, the court finds Plaintiffs have plausibly alleged that
Section 3 was passed with discriminatory intent.

See generally

Arlington Heights, 429 U.S. at 265–66 (“Rarely can it be said that
a legislature or administrative body operating under a broad
mandate made a decision motivated solely by a single concern, or
55

even that a particular purpose was the ‘dominant’ or ‘primary’
one.

In fact, it is because legislators and administrators are

properly

concerned

with

balancing

numerous

competing

considerations that courts refrain from reviewing the merits of
their

decisions,

irrationality.

absent

a

showing

of

arbitrariness

or

But [unconstitutional] discrimination is not just

another competing consideration.
discriminatory purpose

{ "pageset": "Sc1

When there is a proof that a
has been a motivating factor in

the decision, this judicial deference is no longer justified.”)
Having determined that Plaintiffs have plausibly alleged
discriminatory intent, “the court proceeds to determine whether
the disparity in treatment can be justified under the requisite
level of scrutiny.”

Morrison, 239 F.3d at 654.

There has been

considerable debate at the district and circuit court levels about
the applicable standard of scrutiny for classifications based on
transgender status, with the majority of courts to have considered
the

question

in

recent

years

“intermediate” scrutiny applies.25

25

finding

that

“heightened”

or

See, e.g., Glenn v. Brumby, 663

“Intermediate scrutiny requires the state to show that its
justification for the classification is ‘exceedingly persuasive.’”
M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 718 (D. Md.
2018) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)).
“That is, the state is required to demonstrate that the classification
serves important governmental objectives and that the discriminatory
means employed are substantially related to the achievement of those
objectives. Hypothesized or post hoc justifications created in response
to litigation are insufficient to meet this burden, as are justifications
based on overbroad generalizations about sex.” Grimm v. Gloucester Cty.

56

F.3d 1312, 1315–20 (11th Cir. 2011); M.A.B. v. Bd. of Educ. of
Talbot County, 286 F. Supp. 3d 704, 718–22 (D. Md. 2018); Doe 1 v.
Trump, 275 F. Supp. 3d 167, 208–09 (D.D.C. 2017); Adkins v. City
of New York, 143 F. Supp. 3d 134, 139-40 (S.D.N.Y. 2015); but see,
e.g., Johnston v. Univ. of Pittsburgh of Commonwealth Sys. of
Higher Educ., 97 F. Supp. 3d 657, 668 (W.D. Pa. 2015) (applying
rational basis review).
the issue.

The Fourth Circuit has not yet reached

Plaintiffs argue that “strict or at least heightened

scrutiny” should apply (Doc. 233 at 44 n.23), and no Defendant has
offered an argument in its present briefing regarding the proper
standard of scrutiny.

Because the court finds at this stage that

Plaintiffs have sufficiently pleaded that HB142 fails rational
basis review, there is no need to resolve now whether a higher
standard of scrutiny should apply.26
Rational basis review bids the court determine first “whether
the

end

that

governmental

the

state

purpose.”

seeks
Sylvia,

to
48

achieve
F.3d

at

is

a

820.

legitimate
In

this

Sch. Bd., 302 F. Supp. 3d 730, 749 (E.D. Va. 2018) (citations and internal
quotation marks omitted).
26

In a prior order (Doc. 127), the court applied intermediate scrutiny
to HB2 in light of the fact that HB2 “classifie[d] citizens on the basis
of ‘biological sex’” on its face (Id. at 48–49). Since HB142 does not
facially classify individuals on the basis of sex — and indeed does not
facially classify or regulate individuals in any sense — the court’s
standard of scrutiny analysis from its prior order is of little help
here.
(See id. at 49 n.30 (expressly “declin[ing] to consider” the
questions of “whether transgender individuals qualify as a suspect class
for Equal Protection purposes” and “whether Plaintiffs have established
a sex stereotyping claim”).)

57

determination,

the

court

legislative purposes.

accords

some

deference

to

stated

See City of New Orleans v. Dukes, 427 U.S.

297, 303 (1976) (“[T]he judiciary may not sit as a superlegislature
to

judge

the

wisdom

determinations.”)

or

desirability

Next,

the

court

of

legislative

determines

policy

whether

the

challenged “classification utilized by the statute is ‘rationally
related’” to that legitimate governmental purpose.

Sylvia, 48

F.3d at 820 (quoting City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 440 (1985)). While the substantive standard for rational
basis review ultimately “requires the government to win if any set
of

facts

reasonably

may

be

conceived

to

justify

its

classification,” this lenient standard must not be allowed to
“defeat

the

plaintiff’s

benefit

of

the

standard” at the motion to dismiss stage.

broad

Rule

12(b)(6)

Giarratano v. Johnson,

521 F.3d 298, 303 (4th Cir. 2008) (quoting Wroblewski v. City of
Washburn, 965 F.2d 452, 459 (7th Cir. 1992)).

Ultimately, “[t]o

survive a motion to dismiss for failure to state a claim, a
plaintiff must allege facts sufficient to overcome the presumption
of rationality that applies to government classifications.”

Id.

at 304 (quoting Wroblewski, 965 F.2d at 460).
On the initial question of whether the stated governmental
purpose for HB142 is legitimate, the court is hampered by the fact
that the legislation is accompanied by no policy statement.

Nor

do Intervenor-Defendants offer any possible governmental purpose
58

for HB142’s preemption provisions in their briefing, noting only
that the law is the result of “a complex bipartisan compromise.”
(Doc. 234 at 3 n.1.)

It is in fact Plaintiffs who hint at the

most plausible purpose for HB142’s preemption provisions: that
they

are

intended

to

prevent

an

uneven

patchwork

of

anti-

discrimination laws across the State, in order to head off the
sort of uproar that led to — and followed — the passage of HB2.
(See Doc. 210 ¶ 331.)

To this notion, Plaintiffs respond:

[T]he government cannot assert an interest in consistent
statewide obligations given that (1) H.B. 142 in fact
leaves in place local government non-discrimination
ordinances that were enacted prior to the passage of
H.B. 2 . . . and cities have announced their intent to
continue enforcing them; (2) H.B. 142 does not preempt
local governments, school boards, universities, or other
state agencies or branches of government from enacting
non-discrimination rules or regulations with regard to
their own employees or students, or with respect to the
services they provide to citizens; (3) H.B. 142’s
“preemption” is specified to end in December 2020. In
addition, there is no greater need for statewide
uniformity with respect to antidiscrimination laws than
there is with respect to numerous other laws as to which
North Carolina does not prohibit local regulation and as
to
which
there
are
significant
differences
in
regulations of conduct among different parts of the
state . . . .
(Id.)

As a result, Plaintiffs argue, any governmental purpose for

HB142’s preemption provisions resting on statewide uniformity can
only be a “pretext” for the same sort of discrimination that was
more explicit in HB2.

(Id.)

Given the lack of briefing from

Defendants on this issue, the lack of any clearly stated purpose
for

the

law,

the

plausible

arguments
59

made

by

Plaintiffs

in

opposition to the conceivable purpose of statewide uniformity, and
the standard of review at this early pleading stage, the court
finds that — while the question is a close one — Plaintiffs have
“allege[d]

facts

sufficient

to

overcome

rationality” as to Section 3 at this time.

the

presumption

of

Giarratano, 521 F.3d

at 304 (quoting Wroblewski, 965 F.2d at 460); see Mary’s House,
Inc. v. North Carolina, 976 F. Supp. 2d 691, 704 (M.D.N.C. 2013)
(“Plaintiffs do more than present conclusory assertions . . . .
The complaint therefore alleges sufficient facts to overcome the
presumption of rationality at this early stage. Whether Plaintiffs
can ultimately meet the high bar in proving Defendants lacked any
rational basis for the [challenged classification] remains to be
seen.”).
In conclusion, because Plaintiffs have plausibly pleaded both
discriminatory intent and lack of a rational basis for Section 3,
their equal protection claim against Section 3 survives the motions
to dismiss as to the Executive Branch Defendants.27

27

Intervenor-Defendants also argue that Plaintiffs’ claims should be
dismissed as contrary to the Tenth Amendment to the United States
Constitution (Doc. 225 at 21), which forbids the “commandeer[ing]” of
state legislatures by Congress “by directly compelling them to enact and
enforce a federal regulatory program.” New York v. United States, 505
U.S. 144, 161 (1992). Intervenor-Defendants base this argument on the
theory that Plaintiffs are asking the court to mandate that “North
Carolina officials . . . enact and administer access and nondiscrimination policies that do not now exist.” (Doc. 225 at 21.) Even
to the extent Plaintiffs’ requested relief could be characterized in the
manner Defendants suggest — which is at odds with Plaintiffs’ own
assertion that “Plaintiffs simply request that HB142 be struck down”
(Doc. 233 at 45) — an improperly-stated request for relief is not

60

2.

Nominal Damages Claims

Finally, Plaintiffs allege that, regardless of the outcome of
their claims against HB142, they have claims for nominal damages
against the UNC Defendants for “violations of their Title IX and
Title VII rights . . . that occurred while HB2 was in force.”
(Doc. 233 at 11 n.3.)

In their brief, Plaintiffs relegate this

claim to a footnote and decline to make any argument or cite any
cases in support of their position.
more illuminating.

(Id.)

The complaint is no

(Doc. 210 ¶¶ 18, 391–403.)

The UNC Defendants contend that under Titles VII and IX, a
defendant can be liable only for its own conduct, or the conduct
of its agents.

(Doc. 223 at 29.)

They note that, under this

principle, Plaintiffs may not “seek damages from the University
‘for the harms caused by H.B. 2’s violation of’” Titles IX and VII
because the UNC Defendants played no part in the enactment of HB2
and because Plaintiffs’ Fourth Amended Complaint does “not suggest
that the University in fact enforced HB 2 against any of [the

normally grounds for dismissal of a complaint. Charles v. Front Royal
Volunteer Fire and Rescue Dept., Inc., 21 F. Supp. 3d 620, 629 (W.D. Va.
2014) (“[T]he nature of the relief included in the demand for judgment
is immaterial to the question of whether a complaint adequately states
a claim upon which relief can be granted.” (citation omitted)); 5 Charles
Alan Wright et al., Federal Practice and Procedure § 1255 (3d ed. 2018)
(“[T]he selection of an improper remedy in the Rule 8(a)(3) demand for
relief will not be fatal to a party’s pleading if the statement of the
claim indicates the pleader may be entitled to relief of some other
type.”); see also Fed. R. Civ. P. 54(c) (“[A] final judgment should grant
the relief to which each party is entitled, even if the party has not
demanded that relief in its pleadings.”).
As a result, the Tenth
Amendment does not preclude Plaintiffs’ equal protection claim.

61

Plaintiffs].”

(Id. (quoting Doc. 210 ¶ 18).)

The UNC Defendants

also argue that Plaintiffs have not demonstrated that any adherence
to HB2 would have violated Titles IX and VII, as both statutes
permit the maintenance of separate bathrooms, locker rooms, and
shower facilities on the basis of sex.

(Id. at 29–30.)

The briefing on these claims is wholly inadequate for proper
resolution.

As such, decision on this issue will be withheld

without prejudice to the parties rearguing it upon further request
and further briefing.

Fed. R. Civ. P. 12(i).

III. CONCLUSION
For the reasons stated, the court finds that Plaintiffs have
plausibly alleged an equal protection claim against Sections 3 and
428

of

HB142

as

to

the

Executive

Branch

Defendants

and

that

Plaintiffs’ potential claims against HB2 should not be dismissed
on ripeness grounds at this time.

The court defers ruling on

Plaintiffs’ claims for nominal damages for the alleged Title IX
and Title VII violations that occurred while HB2 was in effect
against them.

In all other respects, the motions to dismiss are

granted.

28

Section 4 only states that “[t]his act is effective when it becomes
law” and that “Section 3 of this act expires on December 1, 2020.” HB142
§ 4. Since the operative language relevant to Plaintiffs’ equal
protection claim is found in Section 3, the foregoing opinion has treated
that section exclusively. But since Section 4 modifies Section 3, and
since Plaintiffs also make their equal protection claim against Section
4, that claim currently survives to the same extent it survives as to
Section 3.

62

IT IS THEREFORE ORDERED as follows:
1.

Plaintiffs’ motion for leave to file the declaration of

Ericka Myers (Doc. 236) is DENIED.
2.

The motion to dismiss by the UNC Defendants (Doc. 222)

is GRANTED IN PART and DENIED IN PART in that the claims in Counts
1 and 2 against them, as well as the claims in Counts 6 and 7
pertaining to HB142, are DISMISSED WITHOUT PREJUDICE, but that the
claims against them in Counts 3, 4, and 5 survive.

The court

reserves ruling on the nominal damages claims brought against them
for the period of time when HB2 was in effect against them as found
in Counts 6 and 7.
3.

The motion to dismiss by Intervenor-Defendants (Doc.

221) is GRANTED IN PART and DENIED IN PART, in that the claims in
Count 1, along with the equal protection claim in Count 2 as to
Section 2 of HB142, are DISMISSED WITHOUT PREJUDICE, but that the
equal protection claim in Count 2 as to Sections 3 and 4 of HB142,
as well as the claims in Counts 3, 4, and 5, survive.
4.

Any

party

wishing

to

submit

additional

briefing

regarding Plaintiffs’ nominal damages claims for the period of
time when HB2 was in effect against Plaintiffs must do so within
30 days of the issuance of this order.
5.

As per the court’s prior order (Doc. 228), any party

wishing to submit additional briefing as to the joint motion for
entry of a consent decree must do so within 30 days of the issuance
63

of this order.

In light of the court’s ruling in the present

order, the court directs all parties to meet and confer prior to
the filing of such additional briefing to determine whether any
agreement can be reached as to the effect of the court’s rulings
on the joint motion.
6.

As per the court’s prior order (Doc. 226), the Executive

Branch Defendants are not required to serve an answer or other
responsive pleading to Plaintiffs’ Fourth Amended Complaint until
30 days after the court’s disposition of the joint motion for entry
of a consent decree.

/s/
Thomas D. Schroeder
United States District Judge
September 30, 2018

64