UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

PATRICK L. MCCRORY, in his official capacity
as Governor of the State of North Carolina,
and FRANK PERRY, in his official capacity
as Secretary, North Carolina Department of
Public Safety,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT
OF JUSTICE, LORETTA E. LYNCH, in her
official capacity as United States Attorney
General, and VANITA GUPTA, in her official
capacity as Principal Deputy Assistant Attorney
General,
Defendants.

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CASE NO. ___________________

COMPLAINT FOR DECLARATORY JUDGMENT
Plaintiffs Patrick L. McCrory, in his official capacity as Governor of the State of North
Carolina (“Governor McCrory”), and Frank Perry, in his official capacity as Secretary, North
Carolina Department of Public Safety (“Secretary Perry”), (collectively “plaintiffs”) seek
declaratory and injunctive relief against the United States of America (“United States”), the
United States Department of Justice, Loretta Lynch, in her official capacity as United States
Attorney General, and Vanita Gupta, in her official capacity as Principal Deputy Assistant
Attorney General, for their radical reinterpretation of Title VII of the Civil Rights Act of 1964
which would prevent plaintiffs from protecting the bodily privacy rights of state employees
while accommodating the needs of transgendered state employees. The United States, through
its Department of Justice (“Department”), by letters dated May 4, 2016, threatened legal action

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 against Governor McCrory, Secretary Perry, and others, because plaintiffs intend to follow North
Carolina law requiring public agencies to generally limit use of multiple occupancy bathroom
and changing facilities to persons of the same biological sex. The Department contends that
North Carolina’s common sense privacy policy constitutes a pattern or practice of discriminating
against transgender employees in the terms and conditions of their employment because it does
not give employees an unfettered right to use the bathroom or changing facility of their choice
based on gender identity. The Department’s position is a baseless and blatant overreach. This is
an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is
wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation
by the Courts. The overwhelming weight of legal authority recognizes that transgender status is
not a protected class under Title VII. If the United States desires a new protected class under
Title VII, it must seek such action by the United States Congress. In any event, North Carolina
law allows plaintiffs to accommodate transgender employees while protecting the bodily privacy
rights of other state employees, and nothing in Title VII prohibits such conduct or constitutes
discrimination in the terms and conditions of employment of transgender employees. Moreover,
the Department has similarly overreached in its interpretation of the Violence Against Women
Reauthorization Act of 2013 (“VAWA”). Even if VAWA specifically includes gender identity
as a protected class, the North Carolina law is not discriminatory because it allows
accommodations based on special circumstances, including but not limited to transgender
individuals.
PARTIES
1.

Plaintiff Patrick L. McCrory is the Governor of North Carolina. Under North

Carolina law, Governor McCrory is the chief executive authority for executive branch agencies

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 within state government. Complying with the demands made in defendants’ letter of May 4,
2016, would prevent Governor McCrory from discharging his obligations under the North
Carolina Constitution.
2.

Plaintiff Frank Perry is the Secretary of the North Carolina Department of Public

Safety (“DPS”). Secretary Perry is the chief executive authority for DPS, which is an executive
branch agency reporting to Governor McCrory.

Complying with the demands made in

defendants’ letter of May 4, 2016, would prevent Secretary Perry from discharging his
obligations under North Carolina law.
3.

Defendant the United States, through its co-defendant the Department of Justice,

has the authority to bring enforcement actions pursuant to Title VII and VAWA.

The

Department has threatened to bring such an enforcement action against the State of North
Carolina and its officials.
4.

Defendant United States Department of Justice is a federal executive agency and

possesses responsibility for enforcement of Title VII and VAWA.
5.

Defendant Loretta E. Lynch is the current Attorney General of the United States

and head of the United States Department of Justice. She is sued in her official capacity only.
6.

Defendant Venita Gupta is a Principal Deputy Assistant Attorney General at the

United States Department of Justice and head of the Civil Rights Division of the United States
Department of Justice. She has been delegated the responsibility to bring an enforcement action
under Title VII against the State of North Carolina. She has been sued in her official capacity
only.

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 JURISDICTION AND VENUE
7.

In this action, plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. § 2201,

et seq., the Federal Declaratory Judgment Act, and Rule 57 of the Federal Rules of Civil
Procedure. The parties dispute whether plaintiffs’ implementation of North Carolina’s common
sense bodily privacy law constitutes a violation of Title VII and VAWA.
8.

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.

9.

Venue is proper in this District under 28 U.S.C. § 1391(e) because the plaintiffs in

their official capacities are residents of this District, specifically Raleigh, North Carolina,
plaintiffs have employees in this District, and substantially all of the events creating the dispute
between the parties occurred in this District.
FACTS
10.

On March 23, 2016, the North Carolina General Assembly enacted the Public

Facilities Privacy and Security Act (“the Act”). The Act created common sense bodily privacy
protections for, among others, state employees, by requiring public agencies to require multiple
occupancy bathroom or changing facilities to be designated for and only used by persons based
on their biological sex. Biological sex is the physical condition of being male or female, and the
Act notes that such condition is “stated on a person’s birth certificate.” The Act also allows
accommodations based on special circumstances.
11.

On April 12, 2016, Governor McCrory issued “Executive Order 93 to Protect

Privacy and Equality” (“EO 93”). EO 93 expanded discrimination protections to state employees
on the basis of sexual orientation and gender identity, among others. EO 93 also affirmed North
Carolina law that cabinet agencies should require multiple occupancy bathroom or changing
facilities to be designated for and only used by persons based on their biological sex. EO 93 also

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 reaffirmed North Carolina law that agencies may make a reasonable accommodation upon
request due to special circumstances and directed all agencies to make a reasonable
accommodation of a single occupancy restroom, locker room, or shower facility when readily
available and when practicable.
12.

Upon information and belief, no transgender employee of the State of North

Carolina has advanced a claim that the state employment policy as outlined above is
discriminatory under Title VII.
13.

Upon information and belief, no person has advanced a claim that the law is

discriminatory under VAWA.
14.

Nonetheless, on May 4, 2016, the Department asserted in letters to Governor

McCrory and Secretary Perry that state law as outlined above constitutes a “pattern or practice”
of discriminating against transgender state employees by denying such employees access to the
bathroom or other changing facility of their chosen gender identity.
15.

In addition, the Department asserted that the North Carolina Department of Public

Safety has violated the non-discrimination provision of VAWA.
16.

The Department further threatened to “apply to [an] appropriate court for an order

that will ensure compliance with” the Department’s misguided interpretations of Title VII and
VAWA.
17.

The Department’s threat is real but misplaced. North Carolina does not treat

transgender employees differently from non-transgender employees. All state employees are
required to use the bathroom and changing facilities assigned to persons of their same biological
sex, regardless of gender identity, or transgender status.

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 18.

Moreover, the overwhelming weight of authority has refused to expand Title VII

protections to transgender status absent Congressional action. Courts consistently find that Title
VII does not protect transgender or transsexuality per se. See Etsitty v. Utah Transit Auth., 502
F.3d 1215, 1224 (10th Cir. 2007) (“Etsitty may not claim protection under Title VII based upon
her transsexuality per se.”); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp.
2d 653, 658 (S.D. Tex. April 3, 2008) (Atlas, J.) (acknowledging that “[c]ourts consistently find
that transgendered persons are not a protected class under Title VII per se”); Spearman v. Ford
Motor Co., 231 F.3d 1080 (7th Cir. 2000) (“Congress intended the term ‘sex’ to mean ‘biological
male or biological female,’ and not one’s sexuality or sexual orientation.”); Oiler v. Winn-Dixie
Louisiana, Inc., 2002 WL 31098541, at *6 (E.D. La. Sept. 16, 2002) (“[T]he phrase ‘sex’ has not
been interpreted to include sexual identity or gender identity disorders.”); Ulane v. E. Airlines,
Inc., 742 F.2d 1081, 1084 (7th Cir. 1984) (“The words of Title VII do not outlaw discrimination
against a person who has a sexual identity disorder….”); Sommers v. Budget Mktg., Inc., 667
F.2d 748, 750 (8th Cir. 1982) (“Because Congress has not shown an intention to protect
transsexuals, we hold that discrimination based on one’s transsexualism does not fall within the
protective purview of [Title VII].”)
19.

In any event, even if transgender employees were covered by Title VII, plaintiffs

intend, and are authorized under North Carolina law, to accommodate such individuals in the
terms and conditions of their employment. Title VII does not prohibit employers, including state
employers, from balancing the special circumstances posed by transgender employees with the
right to bodily privacy held by non-transgender employees in the workplace. Title VII allows
gender specific regulations in the workplace. See Finnie v. Lee Cnty., Miss., 907 F. Supp. 2d
750, 772 (N.D. Miss. Jan. 17, 2012) (Title VII “was never intended to interfere in the

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 promulgation and enforcement of personal appearance regulations by private employers.”);
Jackson v. Houston Gen. Ins. Co., 122 F.3d 1066, 1066 (5th Cir. 1997) (an employer does not
violate Title VII by imposing different grooming and dress standards for male and female
employees); Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864, 878 n.7 (9th Cir. 2001)
(“We do not imply that all gender-based distinctions are actionable under Title VII.

For

example, our decision does not imply that there is any violation of Title VII occasioned by
reasonable regulations that require male and female employees to conform to different dress and
grooming standards”); Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1109-10 (9th
Cir.2006) (en banc) (holding that Harrah’s grooming standards requiring women to wear makeup
and styled hair and men to dress conservatively was not discriminatory because the policy did
not impose unequal burdens on either sex); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084,
1091-92 (5th Cir. 1975) (concluding that a grooming policy concerning hair length differences
for males and females did not constitute sex discrimination and noting that such a policy relates
“more closely to the employer’s choice of how to run his business than to equality of
employment opportunity”).
20.

Plaintiffs desire to implement state employment policies that protect the bodily

privacy rights of state employees in bathroom and changing facilities. Plaintiffs also desire to
accommodate the needs of state employees based on special circumstances, including but not
limited to transgender employees. Defendants instead threaten to force plaintiffs to implement
their reinterpretation of Title VII and VAWA while ignoring the bodily privacy of plaintiffs’
employees. Such action by defendants threaten to expose plaintiffs to actual liability under Title
VII, VAWA, and other provisions protecting the bodily privacy rights of employees in the
workplace.

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 21.

There is an actual controversy between the parties concerning whether plaintiffs

may follow North Carolina law regarding bathroom and changing facility use.
22.

A declaratory judgment will serve a useful purpose in clarifying and settling the

legal issues, and will afford relief from uncertainty, insecurity, and controversy giving rise to the
proceeding.
23.

Plaintiffs and the State of North Carolina will suffer significant and irreparable

harm unless this Court intervenes.
COUNT ONE:
DECLARATION THAT PLAINTIFFS
ARE IN COMPLIANCE WITH TITLE VII
24.

The allegations of paragraphs 1 through 23 are re-alleged and incorporated herein

by reference.
25.

North Carolina does not treat transgender employees differently from non-

transgender employees. All state employees are required to use the bathroom and changing
facilities assigned to persons of their same biological sex, regardless of gender identity, or
transgendered status.
26.

Therefore, Plaintiffs respectfully request a declaration that they are not violating

Title VII by following state law regarding bathroom and changing facility use by state
employees.
COUNT TWO:
DECLARATION THAT PLAINTIFFS
ARE IN COMPLIANCE WITH VAWA
27.

The allegations of paragraphs 1 through 26 are re-alleged and incorporated herein

by reference.

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 28.

Even if VAWA specifically includes gender identity as a protected class, North

Carolina law is not discriminatory because it allows accommodations based on special
circumstances, including but not limited to transgender individuals.
29.

Therefore, Plaintiffs respectfully request a declaration that they are not violating

VAWA by following state law regarding bathroom and changing facility use.
DECLARATORY RELIEF
WHEREFORE, plaintiffs pray for judgment pursuant to 28 U.S.C. § 2201 declaring that:
1.

Plaintiffs are not violating Title VII or VAWA by following state law regarding

bathroom and changing facility use by state employees;
2.

Plaintiffs are not violating Title VII or VAWA by following state law allowing

accommodations under special circumstances for employees who need exceptions to state policy
regarding bathroom and changing facility use by state employees;
3.

Plaintiffs are not in violation of Title VII or VAWA;

4.

That this dispute be resolved in favor of plaintiffs such that plaintiffs do not have

to incur damages in the form of back pay, front pay, benefits, liability, and other associated costs;
5.

That plaintiffs recover their fees and costs in this matter; and

6.

Such other further relief as the Court deems just and proper.
Respectfully submitted,
BOWERS LAW OFFICE LLC
By: /s/ Karl S. Bowers, Jr.
Karl S. Bowers, Jr.*
Federal Bar #7716
P.O. Box 50549
Columbia, SC 29250
Telephone: (803) 260-4124
E-mail: butch@butchbowers.com
*appearing pursuant to Local Rule 83.1(e)

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 Counsel for Governor Patrick L. McCrory and
Secretary Frank Perry

By: /s/ Robert C. Stephens
Robert C. Stephens (State Bar #4150)
General Counsel
Office of the Governor of North Carolina
20301 Mail Service Center
Raleigh, North Carolina 27699
Telephone: (919) 814-2027
Facsimile: (919) 733-2120
E-mail: bob.stephens@nc.gov
*appearing as Local Rule 83.1 Counsel
Counsel for Governor Patrick L. McCrory
MILLBERG GORDON STEWART PLLC
By: /s/ William W. Stewart, Jr.
William W. Stewart, Jr. (State Bar #21059)
Frank J. Gordon (State Bar #15871)
B. Tyler Brooks (State Bar #37604)
1101 Haynes Street, Suite 104
Raleigh, NC 27604
Telephone: (919) 836-0090
Fax: (919) 836-8027
Email: bstewart@mgsattorneys.com
fgordon@mgsattorneys.com
tbrooks@mgsattorneys.com
Counsel for Governor Patrick L. McCrory

Dated: May 9, 2016
Raleigh, North Carolina

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