Two transgender people and a lesbian law professor at N.C. Central University filed a lawsuit in federal court early Monday challenging North Carolina’s new law that bans local governments from passing local anti-discrimination ordinances and dictates that transgender residents use the public restrooms of their biological sex.
The legal challenge, announced Monday by representatives from the ACLU of North Carolina, Lambda Legal and Equality NC, added more backlash over a law that within days of its adoption has drawn strong opposition from major corporations, professional and college sports organizations and the White House.
The challengers contend that HB2 permits discrimination against lesbian, gay, bisexual and transgender people across the state, singling them out for “disfavored treatment.” They argue the law violates the U.S. Constitution and makes North Carolina the first state to require public school and university students to use only those bathrooms that match the gender on their birth certificates, a Title IX violation.
“This cruel, insulting, and unconstitutional law is an attack on fairness in employment, education, and local governance that encourages discrimination against thousands of LGBT people who call North Carolina home, and particularly targets transgender men and women,” said Chris Brook, legal director of the ACLU of North Carolina.
The House bill was adopted last week in a $42,000 special legislative session to block a Charlotte City Council ordinance that, among other things, would have allowed transgender people to use the public restrooms across the city that matched the gender with which they identified.
“Before the ordinance could take effect, the North Carolina General Assembly rushed to convene a special session with the express purpose of passing a statewide law that would preempt Chartlotte’s ‘radical’ move to protect its residents from discrimination,” the lawsuit states. “In a process rife with procedural irregularities, the legislature introduced and passed HB2 in a matter of hours, and the governor signed the bill into law that same day. Lawmakers made no attempt to cloak their actions in a veneer of neutrality, instead openly and virulently attacking transgender people, who were falsely portrayed as predatory and dangerous to others.”
The plaintiffs include:
▪ Joaquin Carcaño, a 27-year-old transgender UNC-Chapel Hill employee who has not changed his birth certificate, which lists him as female, to reflect his gender identity;
▪ Peyton Grey McGarry, a transgender UNC Greensboro student who also has not changed his birth certificate, which states he is female, and
▪ Angela Gilmore, a 52-year-old lesbian, who is an associate dean and professor at the N.C. Central law school.
Among those being sued are Gov. Pat McCrory, state Attorney General Roy Cooper, the UNC system Board of Governors, which oversees the campuses where the three plaintiffs work or are in school, and Louis Bissette, chairman of the UNC board. They were singled out, according to the suit, as officials in charge of enforcing the fledgling law.
Cooper, a Democrat running for governor who has criticized the law, is in an unusual position as a defendant in the case and the attorney who typically is called on to defend state laws. Noelle Talley, a spokeswoman for Cooper, said she did not have a statement about the lawsuit to share at the time.
McCrory’s press secretary issued a statement on Monday saying the “governor respects the right of any legal challenges” but criticized state and national media for what he described as “continued distortion of the facts.”
“Where was this coordinated outrage and media attention when the original bathroom ordinance was defeated in Charlotte just last year?” spokesman Graham Wilson said. “The governor looks forward to cheering for the UNC Tar Heels in the NCAA Final Four being played in Houston, a city that defeated a similar bathroom ordinance referendum last year with over 61 percent of the vote.”
Before the North Carolina law was passed, according to the lawsuit, Carcaño and McGarry used men’s restrooms and locker rooms on public campuses without any problems. Gilmore and her spouse traveled the state and checked into public accommodations as a lesbian couple without fear of discrimination.
The law that overturned the Charlotte ordinance has caused them anxiety and fear, according to the suit.
The challengers, their advocates and attorneys said on Monday they worry HB2 will subject Carcaño and McGarry to potential violence and bullying and cause “substantial harm” to their “mental health and well-being.”
“HB2 is hurtful and demeaning. I just want to go to work and live my life. This law puts me in the terrible position of either going into the women’s room, where I clearly don’t belong, or breaking the law,” Carcaño said. “But this is about more than bathrooms, this is about my job, my community, and my ability to get safely through my day and be productive like everyone else in North Carolina.”
The lawmakers who supported HB2 described it as a “historic” statewide anti-discrimination law but refused to include gender identity and sexual orientation as protected groups.
“While they’ve accused the state of disrespecting local control, the irony is far-left groups like the national ACLU, their out-of-state lawyers and Attorney General Roy Cooper want to use North Carolina as a pawn in their extreme agenda to force women and young girls to welcome grown men into their bathrooms and locker rooms nationwide,” Senate president Phil Berger and House leader Tim Moore said in a joint statement. “This lawsuit takes this debate out of the hands of voters and instead attempts to argue with a straight face that there is a previously undiscovered ‘right’ in the U.S. Constitution for men to use women's bathrooms and locker rooms – but we are confident the court will find the General Assembly acted properly in accordance with existing state and federal law."
Attorneys for the challengers said Monday that while they are not overly optimistic it will happen, they hope to persuade the General Assembly to overturn the law when they return later this month for the beginning of the legislative session.
“The rhetoric on display last week by some members of our legislature showed just how transparent their anti-LGBT motives were,” said Chris Sgro, executive director of Equality NC, an advocacy group. “Not only did they keep the bill language secret until the morning it was introduced, but it only took 12 hours to pass and sign into law a bill with terrible consequences for thousands of North Carolinians. … Now is the time to be on the right side of history, because together we will show the politicians that North Carolina refuses to be a leader in bigotry.”
Carcaño is a project coordinator for UNC-Chapel Hill’s Institute for Global Health, working on a program that provides medical education and services, such as HIV testing to the Latino population.
Born and raised in south Texas, Carcaño realized at age 7 or 8 that he did not feel like the girl he was identified as on his birth certificate.
“Mr. Carcaño is a man,” the lawsuit states, and until the passage of HB2 last week, “was recognized and treated like all other men at his work at UNC-Chapel Hill.”
In January 2016, Carcaño obtained a bilateral mastectomy.
For five months or so, before the adoption of HB2, the lawsuit states, Carcaño began using the men’s restroom at work and elsewhere, with no incident.
Payton Grey McGarry
McGarry is a full-time student at UNC Greensboro, studying business administration and accounting. He is a skilled musician, who plays guitar, baritone, clarinet and saxophone, and has played the trumpet in many UNCG ensembles.
McGarry, born and raised in Wilson, “felt like a boy and never really thought of himself as a girl” throughout his childhood, according to the lawsuit.
Listed as a girl on his birth certificate, McGarry “realized in high school that he is transgender.”
At UNCG, McGarry is a member of Phi Mu Alpha Sinfonia, a music fraternity, and is vice president of the Iota Epsilon Chapter of that fraternity.
“His fraternity brothers are aware that he is transgender and have no concerns with the use of men’s restrooms and locker rooms,” the lawsuit states.
Though McGarry lives off-campus, when he is on campus, he uses facilities designed for men, according to the suit.
Gilmore lives in Durham, where she works as the associate dean for academic affairs and professor of law at N.C. Central University.
She is married to Angela Wallace, a woman with whom she has been in a relationship for nearly 20 years. They wed in Washington, D.C., in 2014, three years after Gilmore decided to leave Hollywood, Fla., and make North Carolina her home.
Gilmore fell in love with the state, she said, when she was a visiting professor at Elon University school of law in Greensboro.
Gilmore and her wife, both African-American lesbians, chose Durham as a place where “they could fully be themselves, comfortable in terms of both their race and sexual orientation.”
Gilmore is a member of the ACLU of North Carolina and served on the organization’s board between 2014 and 2015.
Prior to the passage of HB2, the couple had been looking at small towns in North Carolina as places they might want to retire.
“As two women traveling together with the same first name, they are often asked about the nature of their relationship, and they therefore regularly reveal themselves to be a lesbian couple,” the lawsuit states.
In cities that had anti-discrimination ordinances, the lawsuit states, they would have been protected from sexual orientation discrimination in public accommodations. Now they are not, the suit states.