October 18, 2017 at 6:21 pm EST | by Chris Johnson
Gov. Cooper takes actions to alleviate North Carolina’s anti-LGBT law

North Carolina Gov. Roy Cooper took actions aimed at alleviating anti-LGBT discrimination in North Carolina. (Washington Blade file photo by Michael K. Lavers)

Faced with ongoing criticism from LGBT advocates for agreeing to an anti-LGBT law as a compromise deal, North Carolina Gov. Roy Cooper took two actions on Wednesday aimed at curtailing anti-LGBT discrimination in his state, one through the judiciary and one through executive action.

In the judiciary, Cooper along with pro-LGBT legal groups who sued over the anti-LGBT law announced they reached an agreement on a consent decree to ensure transgender people can use restrooms consistent with their gender identity. Meanwhile, Cooper signed an executive order barring anti-LGBT discrimination in state employment and in the awarding of state contracts.

“Earlier this year, I said there was more work to do to protect against discrimination and make North Carolina a welcoming state,” Cooper said in a statement. “Today’s executive order and consent decree are important steps toward fighting discrimination and enacting protections throughout state government and across our state.”

The consent decree proposed in federal court clarifies House Bill 142 cannot be enforced to bar transgender people from the restroom consistent with their gender identity in those facilities. The law, signed by Cooper in March, states North Carolina state agencies cannot engage in “regulation of access” to public restrooms and locker rooms.

“Under HB 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,” the proposed consent decree says.

The judge in the case, the George W. Bush-appointed Thomas Schroeder, must agree to the terms of the proposed consent decree before it takes effect.

The consent decree came about as a result of a lawsuit filed by the American Civil Liberties Union and Lambda Legal against HB142. (It was initially a lawsuit against House Bill 2, a more draconian law signed by former North Carolina Gov. Pat McCrory, but the complaint was modified after Cooper signed HB142 as a replacement compromise .)

Joaquín Carcaño, a transgender man and lead plaintiff in the Carcaño v. Cooper lawsuit, hailed the consent degree as a positive step in alleviating the impact of the anti-LGBT law.

“Nothing can make up for the cruel and senseless attacks transgender people have faced in North Carolina, but I am hopeful that the court will agree to clarify the law so that we can live our lives in less fear,” Carcaño said in a statement.

But components of HB142 that prohibit municipalities from enacting pro-LGBT non-discrimination ordinances remains in effect until Dec. 1, 2020 under the consent agreement. Moreover, the consent agreement doesn’t impact the provision of HB142 prohibiting “regulation of access” to public restrooms in the University of North Carolina and the North Carolina Community College system (although the university is enjoined from enforcing the law as a result of an earlier court order).

Simone Bell, southern regional director for Lambda Legal, said in a statement the consent decree is the first step in a larger process to prohibit entirely anti-LGBT discrimination in North Carolina.

“The state-sanctioned discrimination of HB2 and HB142 and the hollow attempts by North Carolina’s public officials to find a solution opened a deep wound that continues to bleed into the lives of LGBT North Carolinians, but the proposed consent decree can be the start of a healing process,” Bell said. “We will continue to fight for full nondiscrimination protections for all LGBT North Carolinians.”

Under the executive order signed by Cooper, North Carolina is prohibited from discriminating on the basis of race, color, ethnicity, sex, National Guard or veteran status, sexual orientation and gender identity or expression in state employment, state government services, state contracts and state grants.

That effectively prohibits discrimination in state agencies in terms of employment and state contractors, who will have to attest they don’t discriminate

In somewhat of an overlap with the consent decree, the executive order explicitly bars state agencies under the jurisdiction of the governor from enacting policy “impeding any individual who lawfully uses public facilities…in accordance with that person’s gender identity.”

Notably, the executive order “does not create a private cause of action,” which means the state will enforce the directive’s provision and individuals who face discrimination won’t be able to take action on their own in court.

McCrory, faced with criticism for signing HB2, also signed an executive order against anti-LGBT discrimination in state employment, asserting he had a right to take that action as a manager of the state workforce. But that order was limited to state employment and kept in place the portion of HB2 barring transgender people from using the restroom consistent with their gender identity in schools and state government buildings.

Hailing the executive order as a means to protect LGBT people in the state was North Carolina Democratic Party Chair Wayne Goodwin, who called the move “an important and historic step.”

“Thousands of people across the state will be protected under this effort, and because of Gov. Cooper’s leadership, North Carolina will be a more loving and welcoming place for all. We applaud Governor Cooper and support him and his administration as we work together towards providing statewide protections for every citizen, no matter where they came from or who they love.

Cooper takes these actions after igniting a firestorm in the LGBT community for coming to an agreement with the Republican-controlled state legislature to compromise on HB2, which barred municipalities from enacting pro-LGBT ordinances and prohibited transgender people from using public restrooms in schools and government buildings consistent with their gender identity.

Although the replacement law changed the language on transgender restroom access and placed a moratorium on the ban on LGBT city non-discrimination ordinances, LGBT rights supporters called the agreement a betrayal after supporting Cooper in his gubernatorial campaign and said the new law was still discriminatory.

JoDee Winterhof, Senior Vice President of Policy and Political Affairs, said in a statement after the news Cooper and the state legislature must go further in ensuring LGBT non-discrimination.

“While this executive order may represent some narrow improvements for LGBTQ North Carolinians, by no means does it offer full protections or rectify the tremendous harm caused by HB2 and continued harm from HB142,” Winterhof said. “Gov. Cooper and state lawmakers must show leadership on the real solution for North Carolina — statewide, LGBTQ non-discrimination protections.”

Mara Keisling, Executive Director of the National Center for Transgender Equality, said in a statement the order “brings North Carolina a little bit closer back to where many states have been for years.”

“And that has some meaningful consequences for many LGBTQ North Carolinians — it means, for example, that they have a bit of extra protection against being turned away from government services like the DMV and fired from a state government job simply because of their gender identity or sexual orientation,” Keisling said. “But it’s not nearly enough, especially when the state of North Carolina continues to sanction and promote anti-transgender discrimination under HB142.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • translegalhistorian

    Roy, you sold us out. You’re toast-man walking.

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