Executive Order No. 24 & the “Consent Decree”
September 21, 2018
Click here for Executive Order No. 24 Attachments & Executive Order No. 24 Additional Attachments
Governor Roy Cooper’s Executive Order No. 24 and the “Consent Decree” proposed by Governor Roy Cooper, Attorney General Josh Stein and the ACLU
What is to be done about the Governor’s Executive Order No. 24 and his proposed “Consent Decree” with the ACLU? A copy of each is attached to this memorandum. This is my opinion:
I. The “Consent Decree”
The President Pro Tem of the Senate and the Speaker of the House are well represented in the pending federal civil case. Their attorney has moved to dismiss which, if successful, would moot the question of the “consent decree.” The Governor is trying to change the very law (HB 142, SL 2017-4 attached) which he promoted and signed March 30, 2017, by a collusive consent decree that will perpetually bind future governors to his radical new interpretation of the law. The brief of Governor Cooper, Attorney General Stein and the ACLU suggests that there is significant clarity (but some ambiguity) in current North Carolina law as to the regulation of access to multiple occupancy restrooms and changing rooms such that they are merely asking the Court to join them to clarify existing law. This is preposterous!
In his order of 2016, Federal District Judge Thomas Schroeder rejected UNC’s position that HB2 could not be enforced because HB2 had no enforcement provisions. Judge Schroeder listed four different enforcement mechanisms.
- Peeping GS 14 – 202(a) (d)[3] and
- Second-degree trespass, GS 14 – 159.13. In the case of SMS 196 N.C. App 170 (2009) the Court of Appeals held that a 15 year old boy in the girls’ locker room was guilty of second-degree trespass.[1] The label on the door was sufficient notice to him that he should not be there. This is undercut in some school systems by principals (and chancellors) who give permission to students to violate the law. It is probably a good defense to trespass if the person in charge of a facility authorizes a trespass. Judge Schroeder referred to this as “openly defying the law.” By his Executive Order Governor Roy Cooper is “openly defying the law.” But he has possibly created a sufficient defense to a trespass charge by his role as custodian of the facilities within his jurisdiction.
- Indecent exposure, GS 14-190.9(a)[2];
- University discipline of students who violate federal, state or local law.
In addition to these four enforcement mechanisms, there are two others:
- The state building code requires separate restroom facilities for each sex in most commercial buildings with signage “designating the sex” 2012 NC Building Code 101.2 (Intl Code Council, Inc 3d prtg 2014.)[4] “Sex” is biological. “Gender” is a literary concept with fluid meaning. Whatever ambiguity there is in the term “gender” there is no ambiguity in the state building code.
- Under title VII it would create a “hostile work environment” for an employer to maintain restroom or locker room facilities that are not differentiated by biological sex. That would usually be enforced by a private claim for damages in civil court.[5]
II. Governor Roy Cooper’s Executive Order No. 24. of October 18, 2017
On page 8 of this memo I include a memo that I wrote on April 17, 2017 in the aftermath of House Bill 142 (SL 2017-4). There is little in Executive Order No. 24 that could not have been predicted from the Governor’s statements after he signed HB 142 on March 30, 2017.
On October 18, 2017 Governor Cooper issued Executive Order No. 24. The operative provisions of the Executive Order include the Governor’s false claim that “existing federal and state law” on discrimination include “sexual orientation” and “gender identity or expression” as protected classifications. Section IA. State law includes these classifications only in the context of K-12 bullying law. GS 115C-407.15(a). But that law specifically states that it does not apply outside that context. GS 115-C-407.18(f).[6]
Federal law on discrimination does not include these classifications but instead only race, religion, color, nationality and sex. Title VII and Title IX of the federal Civil Rights Act of 1964. 42 USC 2000e et seq. There is a reference in the Prison Rape Elimination Act 34 USC 30301-30309, which does include these classifications, but that is limited to its context and recognizes that inmates have a constitutional right to not be observed by members of the opposite sex while using the restroom or changing clothes. There are also references to “gender” and “gender identity” in “hate crime” legislation, 18 U.S.C. § 249 (a)(2), campus crimes reports, 20 U.S.C. § 1092 (f) and the Violence Against Women Act, 42 U.S.C. § 13925 (b)(13), but these categories are NOT included in Title VII or Title IX. Congress knows how to designate “gender identity” or “sexual orientation” even though they lack a definition.
The Fourth Circuit (of which North Carolina is a part) has held that under Title VII and Title IX “sex” means biological sex and does not mean “sexual orientation” or “gender identity”. Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, (4th Cir. 1996); see also Murray v. N.C. Dept of Pub. Safety, 611 Fed. App’x 166, 166 n* (4th Cir. 2015) (per curiam); Dawkins v. Richmond Cty. Schs., 2012 WL 1580455, at *4 (M.D.N.C. May 4, 2012). Kirby v. N.C. State Univ., 2015 WL 1036946, at *5 (E.D.N.C. Mar. 10, 2015).[7]
The Governor then uses his false premise to command the following: In Section 1C (1) he states that entities under his jurisdiction shall not discriminate, harass, or retaliate on the basis of these prohibited grounds in hiring. This is the only part of his order that is actually within his power and is similar to Governor McCrory’s Executive Order of April 12, 2016. As the hiring officer he “cannot discriminate” on whatever criteria he wants to not discriminate. When he finally realizes the breadth of the meaning of “sexual orientation” and “gender identity”, which he never defines, he may realize that he has seriously overstated his case. See page 12-14 of this memo.
Under Section IC2 he states that these “prohibited grounds” may not be the basis of discrimination in the provision of government services or in the administration of government programs, including, but not limited to, programs and services concerning public safety, health and welfare. As a consequence he will have to immediately change the policy of his Department of Public Safety, Adult Corrections and Juvenile Justice and let correctional officers require inmates of the opposite sex to expose themselves to the correctional officer or to each other when the officer or the inmate claims a new “gender identity.”
The first sentence of Section 2 of House Bill 142 (SL 2007-4), attached, specifically preempts the “office” of the governor from “regulating access to multiple occupancy restrooms, showers, or changing facilities” except in accordance with an act of the General Assembly. Section IC2 of his Executive Order contradicts this statute.
The Order cites as authority (Section IIIA) and indeed is subject to Article III, Section 5(10) of the Constitution which states that:
“The General Assembly shall prescribe the functions, powers, and duties of the administrative departments and agencies of the State and may alter them from time to time, but the Governor may make such changes in the allocation of offices and agencies and in the allocation of those functions, powers, and duties as he considers necessary for efficient administration. If those changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the General Assembly not later than the sixtieth calendar day of its session.”
The governor did not submit this Executive Order within the first sixty days of a session. If he had, either the Senate or House could have disapproved this order by a simple resolution.[8] This constitutional provision is entitled “10 Administration Reorganization” but captions and titles do not control over the text. This constitutional provision was recently cited in the October 31, 2017 Order of the Three Judge Superior Court in Cooper v Berger. 17 CVS 5084 (Wake).
Section IC3 provides that the entities under the Governor’s jurisdiction shall not “discriminate” on the basis of these “prohibited grounds” in awarding state contracts and state grants. This has the same statutory and constitutional defect as stated above. The rules concerning the awarding of state contracts and state grants are set out in full in GS chapter 143- 48 et seq. Article 3, Purchases and Contracts, and in the Current Appropriation Law, SL 2017-57. The Governor has no authority to unilaterally change criteria set by statute.
In Section IC4 the Governor prohibits the entities under his jurisdiction from adopting policies and regulations “barring, prohibiting, blocking, deterring or impeding any individual who lawfully uses public facilities under their control or supervision and in accordance with an individual’s gender identity.”
Setting aside for the moment the inherent ambiguity in the fluid concept of “gender identity,” this portion of the order violates the constitutional provision stated above and Section 2 of HB 142, SL 2017-4. To understand the constantly changing terms of reference for “gender identity”, see page 12-14 of this memorandum.
Section II of the Executive Order addresses Access to State Services. It elaborates on the preceding and takes it down to sub-grantees. This contains the same constitutional and statutory defects as stated above.
In Section III the Governor addresses “policy development.” The Office of State Human Resources is ordered to adopt internal policies to effectuate the same anti-statutory and unconstitutional provisions stated above. He charges OSHR with adopting measures that would identify what consequences state agencies may impose on grantees and sub-grantees … based upon prohibited grounds, “including grant revocation and exclusion from consideration for future state grants” and to take any additional steps necessary to prevent and stop discrimination.
In his Executive Order, Section V, the Governor addresses counties, municipalities, political subdivision, local government agencies. In subsection 1 the Governor states that, “consistent with existing federal and state law” local governments are free to establish their own policies regarding discrimination. But this is directly contrary to Section 3 of HB 142 SL 2017-4 which prohibits ordinances regulating private employment practices and regulating public accommodations until December 1, 2020. And after that date they are beyond the statutory power of local government, Williams v. Blue Cross/Blue Shield of N.C., 357 NC 170 (2003).
In Section V(2) of his Order he encourages private entities to adopt his policies. He is entitled as a citizen to freedom of speech. But he is encouraging actions which in many cases will create a hostile work environment by private entities, violations of the state building code and other laws of the state.
What to do?
- The General Assembly should support a legal challenge by a contractor, grantee, sub-grantee or taxpayer either by intervention, amicus curiae brief or otherwise.
- If the contractor has religious objection to compliance with the Executive Order, and if the contract or grant is funded in part with federal funds, then the challenge may include the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000 bb et seq. The relevant portions of the United States Attorney General’s Memorandum providing guidance on Federal Law Protections of Religious Liberty are included at pp 6-7. The entire memorandum may be found at https://www.justice.gov/opa/press-release/file/1001891/download.
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[1] In re S.M.S., 196 N.C. App. 170, 675 S.E.2d 44 (2009), held that evidence was sufficient to show that juvenile committed second-degree trespass when he entered girls’ locker room at high school so as to support adjudication of delinquency. The Court noted that a sign marked “Girl’s Locker Room” was reasonably likely to give the boy notice that he was not authorized to go into the girls’ locker room, and that his admission that he violated school rules by entering the girls’ locker room supported a reasonable inference that he knew he was not permitted in the locker room.
[2] § 14-190.9. Indecent exposure details several crimes related to exposure of private parts in both public and private places (with varying elements). A claim brought under this statute may depend on the facts of the case.
[3] 14 202. Secretly peeping into room occupied by another person – prohibits secret peeping into rooms (including bathrooms and restrooms). One of the elements of the crime is that the “peeping” is “secret”, though that term is not defined by statute, so, the facts of the case may determine if the elements of the statute are met.
[4] See also https://codes.iccsafe.org/public/getpdf/2012_NC_Plumbing.pdf – Sec. 403.1 Minimum number of fixtures. In new construction or building additions and in changes of occupancy as defined in the North Carolina Building Code, plumbing fixtures shall be provided for the type of occupancy and in the minimum number shown in Table 403.1. Types of occupancies not shown in Table 403.1 shall be considered individually by the code official. The number of occupants shall be determined by the International Building Code. Occupancy classification shall be determined in accordance with the International Building Code. The Plumbing Code uses the terms male and female and requires that a certain number of toilets be provided for males and a certain number for females, based on the type of facility.
[5] The elements for an employment discrimination claim based on a hostile work environment are 1) unwelcome conduct 2) based on a legally protected characteristic 3) that the conduct was so severe or pervasive it affected the terms of employment. Sex is a legally protected characteristic under Title VII.
[6] GS 115C-407.15, describes types of bullying behavior: “Bullying or harassing behavior includes, but is not limited to, acts reasonably perceived as being motivated by any actual or perceived differentiating characteristic, such as race, color, religion, ancestry, national origin, gender, socioeconomic status, academic status, gender identity, physical appearance, sexual orientation, or mental, physical, developmental, or sensory disability, or by association with a person who has or is perceived to have one or more of these characteristics.” G.S. 115C-407.18(f) “(f) Nothing in this act shall be construed to create any classification, protected class, suspect category, or preference beyond those existing in present statute or case law.”
[7] North Carolina is within the Fourth Circuit. Other circuits have split on how to interpret the term “sex” in Title VII and Title IX cases. Until recently, most jurisdictions that reviewed this issue had held that discrimination because of sex means on the basis of being male or female, but does not extend to cover transgender or gender identity status, or to cover sexual orientation.
Some other jurisdictions have applied the analysis first presented by the US Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) to allow claims to be brought on the basis of sex stereotyping, that is, discrimination based on deviation for gender norms for that sex, that would not otherwise be recognized solely on the basis of discrimination because of sex. Some courts have noted, however, that the line between discrimination based on sex stereotyping and discrimination based on other categories not recognized as a basis for a claim, such as sexual orientation, is blurry at best. See Christiansen v. Omnicom Grp., Inc., 2016 WL 951581 (S.D.N.Y. Mar. 9, 2016).
Although the United States Supreme Court has not recognized claims based on sexual orientation as a protected classification under Title VII, the Court in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) held that Title VII’s prohibition on discrimination on the basis of sex included discrimination by members of the same sex as well as discrimination by the opposite sex.
Cases from other federal circuits around the country are collected in the Appendix at pages 15-23.
[8] There is limited case law regarding the Governor’s authority to issue executive orders. The November 1, 2017 decision of the Louisiana Court of Appeals (First Circuit) No. 2017 CA 0173 in “The Louisiana Dept of Justice vs. John Bel Edwards, Governor” held that a remarkably similar Executive Order violated separation of powers and was properly enjoined. A copy of that case is attached.
