Commentary, HB2, News

Lawyer who defended HB2 now the Trump administration’s top civil rights chief

Another day, another outrage from the Trump administration. This is from a story by Rebekah Entralgo of Think Progress entitled “New civil rights chief at Justice Department has spent his career undermining civil rights”:

Thomas Wheeler, the Assistant Acting Attorney General in charge of the Department of Justice’s (DOJ) division that handles policing, discrimination, and voting rights cases, announced he would be leaving his position after just 6 months.

John Gore, a Republican lawyer in Washington, will serve in the interim until Trump’s nominee for the position, Eric Dreiband, secures a hearing. Gore most notably represented the University of North Carolina system after it was sued by the Obama administration over the state’s HB2 bathroom bill. Gore is a former partner at Jones Day—the law firm from which the Trump administration has pulled at least 14 attorneys from to join the president’s team, including the White House Counsel Don McGahn. According to Election Law Blog, Gore’s now-deleted bio on the Jones Day website stated Gore had been “actively involved in redistricting litigation” in private practice and listed six cases in which he defended state governments accused of violating the Voting Rights Act through gerrymandering. (Emphasis supplied.)

Gore represented Florida Governor Rick Scott in a case over his administration’s attempt to purge the state’s voter rolls of potential noncitizens before the 2012 election. The move disproportionately affected Florida’s Hispanic community, which made up only 13% of the 11.3 million active registered voters in Florida at the time, yet were 58% of those identified as potential noncitizens. A federal appeals court ruled in 2014 the purge was found to have violated the National Voter Registration Act (NVRA), which prevents purging of voter rolls 90 days before an election….

Gore will not permanently maintain the job: Trump nominated Washington labor lawyer Eric Dreiband to serve as assistant attorney general in the civil rights division, but hasn’t yet been confirmed. Dreiband, however, also has a poor record on civil rights, and many activists have already voiced their opposition to Dreiband’s nomination….

Dreiband, also a former Jones Day attorney, has represented a tobacco company in an age discrimination case and Bloomberg in a pregnancy discrimination case. In his most high-profile case, Dreiband defended Abercrombie & Fitch in a Supreme Court case when the clothing retailer was sued for refusing to hire a 17-year-old Muslim woman because her headscarf was in violation of the company’s dress code, a case which Dreiband lost.

Commentary

Anthony Scaramucci thought HB2 was “shameful”

Anthony Scaramucci, President Trump’s new communications director, was not a fan of HB2, the sweeping anti-LGBTQ law passed by the General Assembly last year.

Scaramucci tweeted his disapproval on March 23, 2016, the day that the Republican majorities in the House and Senate met in a one-day special session to approve the discriminatory law in response to a local anti-discrimination ordinance passed by the Charlotte City Council.

Wonder if Scaramucci will stand up for LGBTQ folks in his new role as a top adviser to President Trump?

Trump recently announced a ban on transgender people serving in the military which, like HB2 itself, is also shameful.

Courts & the Law, HB2, News

Plaintiffs in HB2 lawsuit intend to challenge HB142; defendants won’t take position on law until it’s filed

The lawsuit over House Bill 2 is at a standstill until the plaintiffs file an amended complaint to include a challenge to HB142, which repealed the sweeping anti-LGBTQ law and replaced it with different discriminatory language.

A report was filed with the federal court Friday with updates on the case from all parties involved, including their positions, or lack thereof, on moving forward.

In the document, the plaintiffs — Joaquin Carcaño, Payton Grey McGarry, Angela Gilmore, Hunter Schafer, Beverly Newell and Kelly Trent — state they intend to file an amended complaint asserting federal constitutional and statutory claims against HB142.

The plaintiffs are represented by the ACLU and Lambda Legal.

A couple paragraphs from the report give a preview of what might be included in the amended complaint:

“Although H.B. 142 purports to ‘repeal’ H.B. 2, in actuality H.B. 142 perpetuates many of H.B. 2’s harms, as well as H.B. 2’s stigmatization of transgender individuals and those who are lesbian, gay, or bisexual
(collectively “LGBT” people).

H.B. 142 discriminates against transgender individuals in exercising one of life’s most basic and essential functions: using the restroom. Under Section 2 of H.B. 142, state agencies and local governments are forbidden from establishing—and transgender individuals are barred from obtaining the protection of—policies ensuring the right of transgender individuals to use the restroom or other single-sex, multi-user facilities consistent with their gender identity. Further, until December 2020, Sections 3 and 4 of H.B. 142 block local governments from protecting LGBT people against discrimination in employment and public accommodations. By targeting all LGBT people for disfavored treatment and singling out transgender individuals for additional discrimination, H.B. 142 violates the most basic guarantees of equal treatment and due process under the U.S. Constitution.”

The defendants in the case — the University of North Carolina, legislative leaders and Gov. Roy Cooper — state in the report that it would be premature to take a position on HB142 before an amended complaint is filed with the court.

Cooper states in the filing that he “may be in position to consent to Plaintiffs’ filing of a Fourth Amended Complaint, and intends to proceed as appropriate thereafter depending on the nature of the allegations.”

You can read the full document here.

Governor Roy Cooper, HB2, News

New Elon Poll on Cooper approval, HB2, medical marijuana

The latest Elon University Poll results give a look at North Carolinians’ views on Gov. Roy Cooper, the General Assembly, the effect of HB2 on the state’s reputation and the question of legalizing marijuana.

The live-caller, dual frame (landline and cell phone) survey of 506 likely voters was conducted from April 18-21. The latest released results feature responses from registered voters classified as likely voters in the Nov. 8 election and has a margin of error of +/- 4.36 percentage points.

The poll found that nearly half of respondents approve of the job Roy Cooper is doing as governor.

“Governor Cooper is clearly enjoying a honeymoon period of public support in North Carolina,” said Jason Husser, director of the Elon Poll, in a release Tuesday. “That he is 19 points net positive in an otherwise divided state gives him some leeway to use soft power even as the legal powers of the office have recently declined.”

“Governor McCrory had positive approval numbers very similar to Governor Cooper’s when the Elon Poll first asked about McCrory’s job performance in April 2013,” Husser said. “Governors have a tendency to become less popular over time. However, Cooper is currently in a strong position to craft a solid foundation of support in North Carolina.”

Of course, Cooper’s approval is split by party.

Seventy percent of Democrats said they approve the job he is doing while just 24 percent of Republicans said they approve. Half of independent voters – a large and growing group of voters in North Carolina – said they approve of Cooper’s performance.

The North Carolina General Assembly did not fair as well in the poll. Fifty-four percent of respondents said they disapprove of the job the General Assembly is doing. While Democrats and black voters were the most likely to disapprove of the legislature, it’s worth noting that the poll found 38 percent of Republicans also disapprove of the job the GOP dominated legislature is doing.

In a related question, the poll asked respondents about HB2’s impact on the state’s national reputation. Sixty-five percent of respondents said they believe it has made North Carolina’s reputation worse.

There were also some interesting responses on marijuana legalization. Eighty percent of respondents said they would support legalizing marijuana for medical use while 45 percent said they would support its legalization for recreational use.

For more information from the poll – including questions on concealed carry gun permits and environmental questions – see the full poll, including more information on methodology.

HB2, News

HB2 appeal seeking transgender protections voluntarily dismissed; litigation in lower court over law still pending

All parties to litigation over House Bill 2 have agreed to dismiss an appeal that sought relief for transgender people from bathroom provisions of the law.

The appeal was filed after a court granted a preliminary injunction in Carcaño v. McCrory preventing the North Carolina university system from enforcing HB2 against the three transgender plaintiffs in the lawsuit. The appeal sought to extend that injunction to prevent discrimination against all transgender people in the state.

However, since HB 142 repealed the bathroom language in HB2, parties to the appeal filed a voluntary motion to dismiss it.

“Among its other provisions, HB2 directed North Carolina public agencies to ‘require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex.’ N.C. Gen. Stat. § 143- 760(b) (2016), repealed by S.L. 2017-4. ‘Biological sex’ was defined as the ‘physical condition of being male or female, which is stated on a person’s birth certificate.’ N.C. Gen. Stat. § 143-760(a)(1) (2016), repealed by S.L. 2017-4.

On March 30, 2017, while this appeal was pending, Governor Cooper signed into law the Act to Reset S.L. 2016-3, which expressly repealed HB2. See S.L. 2017-4 (Exhibit A). As a result, there is no state law barring the use of multiple occupancy bathroom facilities in accordance with gender identity.”

It should be noted that the dismissal does not signify the end of litigation over HB2. A lawsuit over the sweeping anti-LGBT law remains pending in District Court, and lawyers from the ACLU and Lambda Legal has stated it will continue to fight for transgender protections. The organization also plans to seek an amendment to the lawsuit to include the new HB142.

HB142 bars local governments from enacting future anti-discrimination protections until 2020 and states that the General Assembly will dictate future bathroom policies.

“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,” the bill states.

It’s unclear what the new law currently means for transgender residents access to bathrooms. House Speaker Tim Moore and Senate President Pro Tem Phil Berger did not return emails seeking comment about translation of the new law.

A footnote in the dismissal document states that “Intervenors-Appellees Tim Moore and Phil Berger join in this stipulation only to the extent of stipulating and agreeing that (1) the appeal should be voluntarily dismissed under Federal Rule of Appellate Procedure 42(b) and Local Rule 42; (2) the parties should bear their own costs; and (3) there is therefore no need for the supplemental briefing requested by the Court in its order of April 10, 2017, which they do not intend to submit unless otherwise instructed.”

The dismissal will not prejudice the HB2 lawsuit that is still pending.