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    Plaintiffs ,: Consent Judgment and Decree

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    A.P. Dillon
    House Bill 142 North Carolina Transgender "With respect to public facilities that are subject to Executive Branch Defendants’ control or supervision, the Consent Parties agree that nothing in Section 2 of H.B. 142 can be construed by the Executive Branch Defendants to prevent transgender people from lawfully using public facilities in accordance with their gender identity."

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    Plaintiffs ,: Consent Judgment and Decree

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    A.P. Dillon
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    House Bill 142 North Carolina Transgender "With respect to public facilities that are subject to Executive Branch Defendants’ control or supervision, the Consent Parties agree that nothing in Section 2 of H.B. 142 can be construed by the Executive Branch Defendants to prevent transgender people from lawfully using public facilities in accordance with their gender identity."

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    2019-07-23 Carcano v Cooper & Berger - Consent Judgment and Decree

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    House Bill 142 North Carolina Transgender "With respect to public facilities that are subject to Executive Branch Defendants’ control or supervision, the Consent Parties agree that nothing in Section 2 of H.B. 142 can be construed by the Executive Branch Defendants to prevent transgender people from lawfully using public facilities in accordance with their gender identity."

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    91 views9 pages

    Plaintiffs ,: Consent Judgment and Decree

    Uploaded by

    A.P. Dillon
    House Bill 142 North Carolina Transgender "With respect to public facilities that are subject to Executive Branch Defendants’ control or supervision, the Consent Parties agree that nothing in Section 2 of H.B. 142 can be construed by the Executive Branch Defendants to prevent transgender people from lawfully using public facilities in accordance with their gender identity."

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    of 9

    UNITED STATES DISTRICT COURT

    FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

    JOAQUÍN CARCAÑO, et al.,

    Plaintiffs,
    v.

    ROY A. COOPER, III, et al., No. 1:16-cv-00236-TDS-JEP

    Defendants,

    PHIL BERGER, et al.,

    Intervenor-
    Defendants.

    CONSENT JUDGMENT AND DECREE

    1. Whereas on March 28, 2016, Plaintiffs Joaquín Carcaño, Payton Grey

    McGarry, Angela Gilmore, the American Civil Liberties Union of North Carolina

    (“ACLU-NC”), and Equality North Carolina filed a complaint challenging House Bill 2

    (Session Law 2016-3, hereafter referred to as “H.B. 2”) and seeking relief from Defendants

    Patrick McCrory, in his official capacity as Governor of North Carolina; Roy A. Cooper

    III, in his official capacity as Attorney General of North Carolina; the University of North

    Carolina; the Board of Governors of the University of North Carolina; and W. Louis

    Bissette, Jr., in his official capacity as Chairman of the Board of Governors of the

    University of North Carolina.

    2. Whereas 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

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 1 of 9


    Carolina House of Representatives, sought and were granted permissive intervention in this

    action on June 6, 2016.

    3. Whereas Roy A. Cooper, III took office as Governor of North Carolina on

    January 1, 2017, and was automatically substituted as a defendant for Governor McCrory

    in his official capacity as Governor of North Carolina pursuant to Federal Rule of Civil

    Procedure 25(d).

    4. Whereas on March 30, 2017, the North Carolina General Assembly enacted,

    and Governor Cooper signed, House Bill 142, codified as Session Law 2017-4 (“H.B.

    142”). H.B. 142, incorporated herein as “Exhibit A,” rescinded H.B. 2’s provisions

    limiting transgender individuals’ use of public facilities. The term “public facilities” as

    used throughout this Consent Decree refers to multiple occupancy restrooms, showers, or

    changing facilities as referenced in N.C.G.S. § 143-760 and sect. 2 of H.B. 142.

    5. Whereas on July 21, 2017, Plaintiffs Joaquín Carcaño, Payton Grey

    McGarry, Hunter Schafer, Madeline Goss, Angela Gilmore, Quinton Harper, and

    ACLUNC (“Plaintiffs”) filed a Fourth Amended Complaint challenging Sections 2, 3, and

    4 of H.B. 142 and seeking relief from Defendants Roy A. Cooper, III, in his official

    capacity as Governor of North Carolina; the University of North Carolina; Margaret

    Spellings, in her official capacity as President of the University of North Carolina; Josh

    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

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 2 of 9


    of Health and Human Services; and, James H. Trogdon III, in his official capacity as

    Secretary of the North Carolina Department of Transportation.

    6. Whereas Governor Cooper, Attorney General Stein, Secretary Sanders,

    Secretary Cohen, and Secretary Trogdon (“Executive Branch Defendants”) believe that

    continued litigation over the meaning and enforcement of H.B. 142 will result in the

    unnecessary expenditure of State resources, and is contrary to the best interests of the State

    of North Carolina.

    7. Whereas Executive Branch Defendants do not waive any protections offered

    to them through federal or state law, and do not make any representation regarding the

    merits of Plaintiffs’ claims or potential defenses which could be raised in court.

    8. Whereas Plaintiffs and the Executive Branch Defendants (collectively

    referred to as “the Consent Parties”) believe that a resolution of the matter at this time and

    in the manner encompassed by the terms of this Consent Decree serves the best interests of

    the State and its citizens.

    9. Whereas the Consent Parties agree that this Consent Decree promotes

    judicial economy, protects the limited resources of the Consent Parties, and resolves

    Plaintiffs’ claims against the Executive Branch Defendants.

    10. Whereas the Consent Parties further agree that any interpretation or

    application of Section 2 of H.B. 142 that bars, prohibits, blocks, deters, or impedes

    transgender people from using public facilities in accordance with their gender identity or

    subjects transgender people to arrest, prosecution, or criminal sanctions for doing so, raises

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 3 of 9


    serious federal-law concerns, including concerns over constitutional guarantees of equal

    protection and due process, as well as other applicable federal statutes.

    11. Whereas the Court held that “Nothing in the language of Section 2 can be

    construed to prevent transgender individuals from using the restrooms that align with their

    gender identity[.]” ECF 248 at 49.

    12. Whereas the Consent Parties wish to record the interpretation of H.B. 142 set

    forth in this Consent Decree, and thereby effect a binding and enforceable resolution of the

    claims by Plaintiffs against the Executive Branch Defendants with respect to H.B. 142.

    13. Whereas the Consent Parties therefore consent to entry of the following final

    and binding judgment as dispositive of all claims raised by Plaintiffs against the Executive

    Branch Defendants with respect to H.B. 142.

    14. Whereas Plaintiffs agree to a waiver of any entitlement to damages, fees,

    including attorneys’ fees, expenses, and costs against the Executive Branch Defendants,

    with respect to any and all claims raised by Plaintiffs in this action.

    15. Whereas Plaintiffs further agree that dismissal of any and all remaining

    claims stemming from H.B. 2 and H.B. 142, against the Executive Branch Defendants is

    appropriate, and therefore request a dismissal of all remaining claims against the Executive

    Branch Defendants with prejudice following the formal approval of the Consent Decree by

    the presiding District Judge.

    16. Whereas the Consent Parties intend the following Consent Decree to clarify

    that nothing in H.B. 142 can be construed to prevent any person from lawfully using a

    public facility under Executive Branch control that accords with such person’s gender

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 4 of 9


    identity, and to be binding for purposes of issue preclusion and claim preclusion in all

    future actions, including through non-mutual offensive collateral estoppel.

    ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, AND

    DECREED THAT:

    1. With respect to public facilities that are subject to Executive Branch

    Defendants’ control or supervision, the Consent Parties agree that nothing in Section 2 of

    H.B. 142 can be construed by the Executive Branch Defendants to prevent transgender

    people from lawfully using public facilities in accordance with their gender identity. The

    Executive Branch Defendants as used in this paragraph shall include their successors,

    officers, and employees. This Order does not preclude any of the Parties from challenging

    or acting in accordance with future legislation.

    2. The Executive Branch Defendants, in their official capacities, and all

    successors, officers, and employees are hereby permanently enjoined from applying

    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. Under the

    authority granted by the General Statutes existing as of December 21, 2018, and

    notwithstanding N.C.G.S. § 114-11.6, the Executive Branch Defendants are enjoined from

    prosecuting an individual under Section 2 of H.B. 142 for using public facilities under the

    control or supervision of the Executive Branch, when such otherwise lawful use conforms

    with the individual’s gender identity.

    3. The Consent Parties shall each bear their own fees, expenses, and costs with

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 5 of 9


    respect to all claims raised by Plaintiffs against the Executive Branch Defendants.

    4. All remaining claims filed by Plaintiffs against the Executive Branch

    Defendants in this action are hereby dismissed with prejudice.

    /s/ Thomas D. Schroeder


    United States District Judge
    Dated: July 22, 2019

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 6 of 9


    /s/ Irena Como
    Irena Como (NC Bar No. 51812) Tara L. Borelli*
    AMERICAN CIVIL LIBERTIES UNION OF Peter C. Renn*
    NORTH CAROLINA LEGAL LAMBDA LEGAL DEFENSE AND
    FOUNDATION EDUCATION FUND, INC.
    Post Office Box 28004 730 Peachtree Street NE, Suite 1070
    Raleigh, North Carolina 27611 Atlanta, GA 30308-1210
    Telephone: 919-834-3466 Telephone: 404-897-1880
    Facsimile: 866-511-1344 Facsimile: 404-897-1884
    [email protected] [email protected]
    [email protected]
    James D. Esseks*
    Leslie Cooper* Devi M. Rao*
    Elizabeth O. Gill* Andrew C. Noll*
    Chase B. Strangio* JENNER & BLOCK LLP
    AMERICAN CIVIL LIBERTIES UNION 1099 New York Avenue, NW Suite 900
    FOUNDATION Washington, DC 20001-4412
    125 Broad St., 18th Fl. Telephone: 202-639-6000
    New York, NY 10004 Facsimile: 202-639-6066
    Telephone: 212-549-2627 [email protected]
    Facsimile: 212-549-2650 [email protected]
    [email protected]
    [email protected] Scott B. Wilkens*
    [email protected] Wiley Rein LLP
    [email protected] 1776 K Street NW
    Washington, DC 20006
    Telephone: 202-719-7000
    Facsimile: 202-719-7049
    [email protected]

    *Appearing by special appearance pursuant to L.R. 83.1(d).

    Counsel for Plaintiffs

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 7 of 9


    JOSHUA H. STEIN
    ATTORNEY GENERAL
    STATE OF NORTH CAROLINA

    /s/ Amar Majmundar /s/ Olga E. Vysotskaya de Brito


    Amar Majmundar Olga E. Vysotskaya de Brito
    NC Bar No. 24668 NC Bar No. 31846
    SPECIAL DEPUTY ATTORNEY GENERAL SPECIAL DEPUTY ATTORNEY GENERAL
    NORTH CAROLINA DEPARTMENT OF NORTH CAROLINA DEPARTMENT OF
    JUSTICE JUSTICE
    Post Office Box 629 Post Office Box 629
    Raleigh, NC 27602 Raleigh, NC 27602
    Telephone: (919) 716-6821 Telephone: (919) 716-0185
    Facsimile: (919) 716-6759 Facsimile: (919) 716-6759
    [email protected] [email protected]

    Counsel for Defendants GOV. ROY A. COOPER, III, in his


    Official Capacity as Governor of North Carolina, JOSHUA H.
    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.

    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 8 of 9


    Case 1:16-cv-00236-TDS-JEP Document 296 Filed 07/23/19 Page 9 of 9

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