UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NORTH CAROLINIANS FOR PRIVACY, an unincorporated nonprofit association;
Plaintiff, vs. UNITED STATES DEPARTMENT OF JUSTICE; LORETTA E. LYNCH, in her official capacity as United States Attorney General; UNITED STATES DEPARTMENT OF EDUCATION; and JOHN B. KING, JR., in his official capacity as United States Secretary of Education. Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
North Carolinians for Privacy states as follows:
INTRODUCTION
1. The Plaintiff, North Carolinians for Privacy, brings this declaratory
action pursuant to 28 U.S.C.A. §§ 2201-02 on behalf of its members, who are
students in the University of North Carolina University System; students at
elementary, middle, and high schools throughout North Carolina; and parents of
the students who are minor children.
2. North Carolinians for Privacy asks this Court to declare that:
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a. The Department of Justice and the Department of Education may not lawfully rely on and enforce the Department of Education’s redefinition of “sex” in Title IX, because the Department’s agency action of redefining “sex” violated the Administrative Procedure Act;
b. The maintenance of sex-specific restrooms and locker rooms by educational institutions does not violate the requirements of Title IX, codified at 20 U.S.C. §§ 1681 et. seq., which prohibits discrimination in education or educational benefits and programs because of a person’s “sex;” and
c. The maintenance of sex-specific restrooms and locker rooms by educational institutions does not violate the requirements of the Violence Against Women Act (“VAWA”), codified at 42 U.S.C.A. §§ 13925 et seq., which prohibits discrimination in certain programs and activities in education because of a person’s “gender identity.”
3. North Carolinians for Privacy also asks this Court to enjoin the Defendants from taking any action inconsistent with this Court’s declaration that would affect its members’ rights.
4. The federal Department of Justice (“DOJ”) sent letters to the Governor of North Carolina, as well as the President of the University of North Carolina System, last Wednesday (May 4, 2016), demanding that the State and the
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University System allow biological males to use restrooms and locker rooms designated for women, and to allow biological females to use restrooms and locker rooms designated for men.
5. DOJ’s letters threatened that, if the State of North Carolina and the University System do not comply, DOJ would invoke its power to enforce Title IX through “‘any other means authorized by law,’ including judicial enforcement,” and to “enforce VAWA through civil actions,” and revoke federal funds made available pursuant to Title IX and VAWA.
6. Yesterday, May 9, 2016, the DOJ filed suit against the State of North Carolina and the University System.
7. At a press conference announcing the lawsuit, United States Attorney General Loretta Lynch stated that DOJ “retain[ed] the option of curtailing federal funding” for North Carolina and its schools, including the University System.1
8. In response to a question at the press conference, Attorney General Lynch stated that, “It would be premature right now to give a date on when we actually will take that step” of revoking federal funds.2

1 Department of Justice, “Remarks as prepared for Delivery,” May 9, 2016, available

at

https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-

remarks-press-conference-announcing-complaint (last visited May 9, 2016).

2 Jane Stancill, “UNC President Spellings: UNC system caught in middle of state,

federal fight on HB2,” The News &Observer, May 9, 2016, available at

http://www.newsobserver.com/news/local/education/article76612287.html

(last

visited May 9, 2016).

3

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9. The University System’s spokesperson has publicly stated that the University System’s federal funds, including its students’ eligibility for student loans, are at stake.3
10. The total amount of federal funds at stake is approximately $1.4 billion, while the total amount of federal student loans that the University System’s students will lose is approximately $800 million.4
11. Some of the members of North Carolinians for Privacy are students currently within the University System, or will be students within the University System beginning next year.
12. All of these students’ educational opportunities will be adversely impacted if the federal government revokes the federal funding that the University System receives.
13. Additionally, some of these students receive currently Pell Grants, federal student loans, or other sources of federal funding, all of which is now at risk.
14. These students’ current and future educational opportunities, as well as their financial ability to secure an education at colleges within the University System, will be directly impacted if the federal government determines that the
3 Emery P. Dalesio, “NC college system’s federal funds in crosshairs of LGBT law,” CTPost, May 8, 2016, available at http://www.ctpost.com/news/politics/article/NorthCarolina-leaders-denounce-federal-threat-on-7394507.php (last visited May 8, 2016). 4 Pete Williams et al., “DOJ Files Lawsuit Challenging North Carolina Bathroom Law,” NBC News, May 9, 2016, available at http://www.nbcnews.com/news/usnews/north-carolina-gov-pat-mccrory-faces-monday-deadline-lgbt-law-n570396 (last visited May 9, 2016).
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University System is in violation of Title IX, and so makes those students ineligible to receive this federal financial assistance while attending the University System.
15. Also included within North Carolinians for Privacy are elementary and secondary school students and their parents.
16. Their schools are public schools in North Carolina that receive federal funding pursuant to Title IX.
17. They are aware that the federal government has previously threatened to revoke federal funding when public school districts sought to maintain sexspecific restrooms and locker rooms.
18. DOJ’s letter to the Governor indicates that DOJ requires their public elementary and secondary schools to allow biological male students entry and use of the restrooms and locker rooms designated for females, and also to allow biological female students entry and use of the restrooms and locker rooms designated for males.
19. DOJ is threatening to revoke Plaintiff’s members’ schools’ federal funding pursuant to Title IX if the State does not require its public schools to grant such rights of entry and use.
20. Their educational opportunities will be adversely impacted if the federal government revokes their schools’ federal funding.
21. In its letters to the State and the University System, DOJ relied on a new rule, created by the Department of Education (“DOE”), that forbids educational institutions from maintaining sex-specific restrooms and locker rooms.
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22. DOJ also stated that Title IX and VAWA forbid sex-specific restrooms and locker rooms in educational institutions.
23. DOE’s action in creating its new rule violates the Administrative Procedure Act, codified at 5 U.S.C. §§ 500 et seq., and is unlawful, as is DOJ’s reliance on it.
24. Title IX and VAWA both allow for sex-specific restrooms and locker rooms.
25. North Carolinians for Privacy therefore seeks a declaration from this Court to that effect, in order to put an immediate end to the ongoing threat to their ability to access educational opportunities at elementary, middle, and high schools throughout North Carolina and at colleges within the University System.
JURISDICTION AND VENUE
26. This action arises under 28 U.S.C.A. §§ 2201-02 (the “Declaratory Judgments Act”), 5 U.S.C. §§ 500 et seq. (the “Administrative Procedure Act” or the “APA”), and 20 U.S.C. §§ 1681 et. seq. (“Title IX”).
27. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1361, and 1367.
28. The Court has jurisdiction to issue the requested declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57.
29. The Court has jurisdiction to award the requested injunctive relief under 5 U.S.C. §§ 702 and 703, 20 U.S.C. § 1683, and Federal Rule of Civil Procedure 65.
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30. The Court has jurisdiction to award reasonable attorneys’ fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412.
31. Venue lies in this district pursuant to 28 U.S.C. § 1391(b) and (e), because a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this district.
PLAINTIFF
32. Plaintiff North Carolinians for Privacy is an unincorporated non-profit association organized under N.C. Gen. Stat. Ann. § 59B-1 through B-15, and headquartered in Raleigh, North Carolina.
33. North Carolinians for Privacy exists to advocate for, and protect, bodily privacy in the State of North Carolina and to ensure their members need not give up their right to privacy in order to access educational opportunities at elementary, middle, and high schools throughout North Carolina and at colleges within the University System.
34. Its members have an interest in this litigation because the action of the DOJ threatens bodily privacy rights in North Carolina and their ability to continue to access educational opportunities at elementary, middle, and high schools throughout North Carolina and at colleges within the University System.
35. North Carolinians for Privacy’s members are all United States citizens and residents of the State of North Carolina.
36. Some of its members are directly impacted by DOJ’s actions, which threaten to revoke federal funding if the State and University System do not allow
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biological males the right of entry and use of restrooms and locker rooms designated for females, and vice versa.
37. Some of its members are students within the University of North Carolina System (the “University Students”), or will be matriculating next school year as freshmen to colleges within the University System.
38. Some of its members are students in North Carolina elementary schools, middle schools, or high schools that receive federal funding (the “Minor Students”).
39. Some of its members are parents of Minor Students (the “Parents”).
DEFENDANTS
Defendant Department of Justice 40. Defendant Department of Justice is an executive agency of the United States government and is responsible for the enforcement of Title IX, 20 U.S.C. §§ 1681-1688, and its implementing regulation at 34 C.F.R. Part 106. DOJ also has authority to bring enforcement actions to enforce Title IX and VAWA.
Defendant Attorney General Loretta E. Lynch 41. Defendant Loretta E. Lynch is the United States Attorney General. In this capacity, she is responsible for the operation and management of the DOJ. Lynch is sued in her official capacity only.
Defendant Department of Education 42. Defendant Department of Education is an executive agency of the United States government and is responsible for the promulgation, administration,
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and enforcement of Title IX, 20 U.S.C. §§ 1681-1688, and its implementing regulation at 34 C.F.R. Part 106.
43. DOE is responsible for adopting, promulgating, and enforcing its new legislative rule interpreting “sex” in Title IX to mean, or include, gender identity.
Defendant Secretary John B. King, Jr. 44. Defendant John B. King, Jr., is the United States Secretary of Education. In this capacity, he is responsible for the operation and management of the DOE. King is sued in his official capacity only.
STATEMENT OF FACTS
I. DOJ Relies on DOE’S Unlawful Agency Action And Misunderstandings of VAWA
A. Title IX and Its Meaning 45. Title IX provides that “[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…” 20 U.S.C. § 1681.
46. The regulations implementing Title IX provide, in relevant part, that “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular…or other education program or activity operated by a recipient which receives Federal financial assistance.” 34 C.F.R. § 106.31(a).
47. The implementing regulations also provide that a funding recipient shall not on the basis of sex: “Treat one person differently from another in
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determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service; … Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner; … Deny any person any such aid, benefit, or service; … Subject any person to separate or different rules of behavior, sanctions, or other treatment; …[or] Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.” 34 C.F.R. § 106.31(b).
48. Nothing in Title IX’s text, structure, legislative history, or accompanying regulations addresses gender identity.
49. The term “gender identity” does not appear in the text of Title IX. 50. The term “gender identity” does not appear in the regulations accompanying Title IX. 51. The term “gender identity” does not appear in the legislative history relating to Title IX. 52. Indeed, recognizing that Title IX does not protect against discrimination because of “gender identity” (but only against discrimination because of biological sex), beginning in 2011, Senator Al Franken has repeatedly introduced legislation modeled after Title IX that would protect against discrimination because of gender identity in the education context, just as Title IX protects against discrimination because of sex. 53. That legislation has failed to pass every year it has been introduced.
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54. Title IX and the accompanying regulations use the term “sex,” not “gender identity,” in describing the type of discrimination prohibited.
55. The term “sex” as used in Title IX and its implementing regulations means male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.
56. Title IX also states that “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes[,]” 20 U.S.C. § 1686, indicating that Congress intended that Title IX would respect student privacy rights.
57. Title IX’s accompanying regulations confirm that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
58. Preventing the mixing of biological boys and girls in intimate environments like restrooms, locker rooms, and showers is the very reason that Congress allowed for separate living facilities, and that Title IX regulations allow for separate restrooms, locker rooms, and changing areas, for the different sexes. B. DOE’s Unlawful Agency Action
59. Under the Administrative Procedure Act, any “rules which do not merely interpret existing law or announce tentative policy positions but which establish new policy positions that the agency treats as binding must comply with
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the APA’s notice-and-comment requirements, regardless of how they initially are labeled.” 72 Fed. Reg. 3433.
60. Such legislative rules enacted under Title IX must also be “approved by the President” before they become effective. 20 U.S.C. § 1682.
61. DOE took agency action and declared that the term “sex” as used in Title IX’s prohibition on sex discrimination now means, or includes, “gender identity.”
62. This agency action constituted the creation of a new legislative rule, because it announced a new policy position, which the agency is treating as binding.
63. DOE announced this new legislative rule redefining “sex” to schools nationwide in several DOE guidance documents published over the last few years, including the following: U.S. Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, 5 (Apr. 2014); U.S. Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, 25 (Dec. 2014); U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, 1, 15, 16, 19, 21-22 (Apr. 2015).
64. DOE’s new rule requires educational institutions to treat students consistently with their perceived gender identity, regardless of biological sex.
65. DOE has enforced its new rule in numerous secondary school districts around the country.
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66. For example, DOE threatened Palatine, Illinois, Township High School District 211 with the loss of $6 million dollars in federal funds if it failed to grant a biologically male student access to the girls’ locker and shower rooms.
67. DOE has treated its declaration that Title IX bars gender identity discrimination as a legislative rule that is binding on all schools that are subject to Title IX.
68. DOE is actively enforcing this legislative rule against schools across the country.
69. DOE did not comply with APA’s notice-and-comment requirements when it adopted its legislative rule redefining “sex” in Title IX to include gender identity and mandating that schools give students seeking access to opposite sex facilities based on their gender identity the access they desire.
70. DOE’s new rule was not published for notice and comment. 71. DOE’s new rule was not signed by the President. C. DOJ’s Improper Reliance on DOE’s Unlawful Agency Action 72. Last week, on Wednesday, May 4, 2016, the federal Department of Justice (DOJ) sent letters to the Governor of the state of North Carolina (the “Letter to the Governor”),5 along with the President of the University of North Carolina System (the “Letter to the University System”).6
5 Letter, U.S. Department of Justice Civil Rights Division to Governor Pat McCrory, May 4, 2016, available at https://assets.documentcloud.org/documents/2823410/Civil-Rights-Division-letter-on-HB2.pdf; Letter, U.S. Department of Justice Civil Rights Division to Margaret Spellings, President, University of North Carolina, May 4, 2016, available at http://www.charlotteobserver.com/news/politics-
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73. Those letters stated that if the State and University System complied with a North Carolina law known as H.B. 2, which requires multiple occupancy bathroom or changing facilities to be designated for the use of only students of one biological sex, the State would violate Title VII, and the University System would violate Titles VII, IX and VAWA.
74. Those letters also include a demand: stop enforcing H.B. 2 or face imminent enforcement actions, including a revocation of their federal funding.
75. DOJ’s lawsuit, filed against the State and the University System, amplified that demand.
76. The letters and the lawsuit together create an unmistakable ultimatum: either submit to the will of DOJ by prohibiting sex-specific restrooms and locker rooms in educational institutions, or face the consequences, including revocation of federal funds (“the Ultimatum”).
77. The Letter to the Governor notes in footnote 3 that H.B. 2 applies to local boards of education, thus recognizing that public schools are prohibited by state law from allowing biological males to enter and use private facilities designated for females, and vice versa. Letter to the Governor, supra note 5, at 2 n.3.
government/article75647942.ece/BINARY/Read:%20DOJ%20letter%20to%20UNC (last visited May 8, 2016). 6 Letter, U.S. Department of Justice Civil Rights Division to Margaret Spellings, President, University of North Carolina, May 4, 2016, available at http://www.charlotteobserver.com/news/politicsgovernment/article75647942.ece/BINARY/Read:%20DOJ%20letter%20to%20UNC (last visited May 8, 2016).
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78. The Letter to the Governor states that a similar prohibition, affecting the University of North Carolina System, is a Title IX violation. Id. at 2-3.
79. The Letter to the Governor also warns that, according to DOE’s guidance, “educational institutions generally must treat [students who perceive themselves as the opposite biological sex] consistent with their gender identity,” and that DOE’s guidance is “entitled to controlling weight.” Id. at 1-2 (quotations omitted).
80. The Letter to the University System states that the requirements of Title IX and its implementing regulations prohibit the University System from maintaining sex-specific facilities for either employees or students. Letter to the University System, supra note 6, at 2-3.
81. As authority for this statement, DOJ relies upon DOE’s new legislative rule declaring that the term “sex” in Title IX and its implementing regulations includes gender identity. Id. at 3.
82. DOJ thus relies upon DOE’s unlawful agency action to reach its determination that the State and the University System will violate Title IX if they adhere to the requirements of H.B. 2 and continue to maintain sex-specific restrooms, locker rooms, and shower rooms in the State’s educational institutions, including the University System. D. DOJ’s Reliance on a Wrong Understanding of VAWA
83. In the Letter to the University System, DOJ states that VAWA prohibits the University System from discriminating based on gender identity, and
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intimates that VAWA therefore prohibits maintaining sex-specific restrooms and locker rooms. Id. at 2.
84. VAWA requires that no one, based on gender identity, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the [VAWA].” 42 U.S.C.A. § 13925(13)(A) (emphasis added).
85. The programs and activities funded under VAWA include, for example, “education programs for the prevention of domestic violence, dating violence, sexual assault, and stalking,” “programs providing legal, medical, or psychological counseling, for victims of domestic violence, dating violence, sexual assault, and stalking,” the creation of “data collection and communication systems . . . linking campus security to the local law enforcement, and the distribution of “print or electronic materials to address both prevention and intervention in domestic violence, dating violence, sexual violence, and stalking.” 42 U.S.C. § 14045b(b).
86. VAWA funding does not include policies or programs regulating access to restrooms or locker rooms.
87. DOJ’s Letter to the University System indicates that DOJ believes that VAWA prohibits the University System and other educational institutions from maintaining sex-specific restrooms and locker rooms. Letter to the University System, supra note 3, at 2.
88. VAWA does not prohibit schools from maintaining sex-specific restrooms and locker rooms.
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II. The Harm to the Plaintiff’s Members as a Result of DOJ’s Letters A. The Harm to the University Students
89. The DOJ’s threatened enforcement action, which has already commenced and includes an imminent threat to revoke the University System’s $1.4 billion in federal funding, places the University Students at immediate risk of suffering the loss of educational opportunity as a result of decreased funding to the University System.
90. The loss of such a substantial amount of money would result in severe cutbacks in educational programs from which the University Students directly benefit.
91. This will directly harm University Students. 92. Further, some of the University Students receive federal financial aid. 93. These University Students rely on that federal financial assistance to attend schools in the University System. 94. If DOJ revokes the University System’s eligibility for federal funding, the University Students will no longer be eligible for federal financial assistance. 95. Federal financial assistance under Title IX includes federal grants, loans, scholarships, and wages that are “authorized or extended under a law administered by the Federal agency that awards such assistance.” See 65 Fed. Reg. 52858; see also Grove City College v. Bell, 465 U.S. 555, 569 (1984) (noting that enforcement action by the DOE against a college for failure to certify compliance
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with Title IX would leave students receiving federal financial assistance the choice of switching colleges or foregoing the assistance).
96. If DOJ follows through on its threat to imminently revoke federal funding from the University System due to a Title IX violation, that revocation would also bar students from using federal scholarships, loans, grants, and wages to pay for tuition to attend a college within the System.
97. Students affected by a revocation of the University System’s federal funding would have their expenditures related to their college costs increase dramatically, forcing them to pay far more to attend a college within the System, transfer to a school outside the System, or drop out of school altogether.
98. The University System’s colleges provide the highest quality college education available in North Carolina.
99. If the University Students are barred from using federal funds to attend any college within the University System, they will have to attend colleges that provide inferior educational opportunities and degrees.
100. If the University System capitulates to DOJ’s threat, the University Students will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex.
101. The female University Students in particular object to the privacy violations created by allowing biological males the right of entry and use of restrooms and locker rooms designated for females.
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102. But the female University Students experience the added worry, anxiety, stress, and fear caused by the knowledge that allowing biological males the right of entry and use of restrooms and locker rooms designated for females places them at higher risk of sexual assault.
103. The federal Center for Disease Control reports that “[i]n a nationally representative survey of adults, 37.4% of female rape victims were first raped between ages 18-24.” Center for Disease Control, Sexual Violence: Facts at a Glance (2012), available at http://www.cdc.gov/violenceprevention/pdf/sv-datasheet-a.pdf (last visited May 8, 2016).
104. The federal Center for Disease Control reports that, in a study limited to undergraduate college women, 19% experienced attempted or completed sexual assault since entering college.” Id. (emphasis added).
105. The President of the United States has stated that “[a]n estimated one in five women has been sexually assaulted during her college years.” The White House, “President Obama Launches the ‘It’s On Us’ Campaign to End Sexual Assault on Campus,” September 19, 2014, available at https://www.whitehouse.gov/blog/2014/09/19/president-obama-launches-its-uscampaign-end-sexual-assault-campus (last visited May 8, 2016).
106. The incidence of rape and other forms of sexual assault on college campuses may be even higher, because the President said that “only 12 percent [of sexual assaults] are reported.” Id.
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107. Currently, if someone sees a male student enter the female students’ private facilities, he or she can notify campus security.
108. But if Defendants have their way, no one will be able to stop any biological male from entering female restrooms and locker rooms.
109. Significantly, DOJ’s and DOE’s understanding of Title IX does not include a “gender expression” component, but only a “gender identity” component.
110. So, according to DOJ and DOE, biological males do not need to present as female in order to enter and use female restrooms and locker rooms; rather, they merely must say that they identify as female.
111. The female University Students are deeply concerned that male students whose gender identity matches their male biology might take advantage of such policies for nefarious and lewd purposes.
112. The female University Students are deeply concerned that allowing biological male students into their private facilities increases the likelihood that they will be assaulted or otherwise victimized.
113. Additionally, some of the University Students object to using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity. B. The Harm to the Minor Students and their Parents
114. The Minor Students all attend schools in North Carolina that receive federal funds pursuant to Title IX.
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115. Their schools, like all schools receiving federal funds, rely on those funds to provide numerous educational programs and activities.
116. The DOJ and DOE are authorized to revoke federal funds of schools found to be in violation of Title IX.
117. If the Minor Students’ schools lose their federal funds, the Minor Students will suffer the harm of fewer, or inferior, educational programs and activities.
118. Additionally, if the Minor Students’ schools capitulate to DOJ’s threat, the Minor Students will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex.
119. The Minor Students’ Parents desire for their minor children to receive a high-quality public education.
120. If the Minor Students’ schools lose their federal funds, the Minor Students will suffer the harm of fewer, or inferior, educational programs and activities, and the Parents’ desire for their minor children to receive a high-quality public education will be frustrated.
121. If the Minor Students’ schools capitulate to DOJ’s threat, each Parent’s right to direct the education and upbringing of their children—including their right to control whether their children will be exposed to people of the opposite sex in intimate, vulnerable settings like restrooms, locker rooms, and showers—will be
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violated because their minor children will be compelled by the government to use restrooms and locker rooms with members of the opposite sex.
122. All of the Parents object to their children, the Minor Students, using restrooms and locker rooms with opposite-sex students, enduring the risk of exposure to opposite-sex nudity, and enduring the risk of exposing their own undressed or partially unclothed bodies to members of the opposite sex.
123. Additionally, some of the Minor Students and Parents object to the Minor Students using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
ALLEGATIONS OF LAW
124. If DOJ is allowed to forbid the State from maintaining sex-specific restrooms and locker rooms on its campuses, the University Students will either (1) suffer the loss of their constitutionally-guaranteed right to bodily privacy, or (2) suffer the loss of educational opportunities and their ability to access federal financial assistance, because the University System refuses to comply with DOJ’s Ultimatum, and their schools’ federal funds are revoked by the federal government.
125. If DOJ is allowed to forbid the State from maintaining sex-specific restrooms and locker rooms in its local school districts, the Minor Students will either (1) suffer the loss of their constitutionally-guaranteed right to bodily privacy, or (2) suffer the loss of educational opportunities because the State refuses to comply with DOJ’s Ultimatum, and their schools’ federal funds are revoked by the federal government.
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126. If DOJ is allowed to forbid the State from maintaining sex-specific
restrooms and locker rooms in local school districts, the Parents will either
(1) suffer the loss of their constitutionally-guaranteed right to direct the education
and upbringing of their minor children, or (2) suffer the loss of educational
opportunities for their children, because the State refuses to comply with DOJ’s
Ultimatum, and their schools’ federal funds are revoked by the federal government.
127. The University Students, Minor Students, and their Parents should
not be forced to suffer any of these results, because providing single-sex restrooms,
locker rooms, and shower facilities does not violate Title IX or VAWA, as DOJ’s
Ultimatum claims.
128. To preserve the legal rights of the University Students, Minor
Students, and Parents, North Carolinians for Privacy needs a declaration and
injunction from this Court.
129. North Carolinians for Privacy has no adequate remedy at law.
FIRST CAUSE OF ACTION DECLARATION THAT DOJ AND DOE CANNOT RELY UPON DOE’S REDEFINION OF “SEX” IN TITLE IX BECAUSE THE REDEFINITION
VIOLATES THE ADMINISTRATIVE PROCEDURE ACT7 130. North Carolinians for Privacy realleges all matters set forth in
paragraphs 1 through 129 and incorporate them herein.
7 Plaintiff raises its federal constitutional and statutory arguments in the context of its APA claim, because presently the imminent harm to Plaintiff is DOJ’s revocation of Title IX funding pursuant to the DOE’s unlawful interpretation of Title IX. However, should the University System or other North Carolina school officials capitulate to the DOJ’s demand and permit males into females’ restrooms and changing areas, and vice versa, Plaintiff will amend the complaint to add those officials as defendants and assert separate constitutional and statutory claims against them.
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131. DOE promulgated, and is enforcing, a new legislative rule that redefines the term “sex” in Title IX and its accompanying regulations to mean, or at least include, “gender identity.”
132. Pursuant to Executive Order 12250, the DOJ also has authority to bring enforcement actions to enforce Title IX.
133. DOJ’s enforcement of Title IX is reviewable pursuant to 20 U.S.C § 1683.
134. Threatened adverse action pursuant to Title IX constitutes final, reviewable action.
135. DOJ’s letters, along with its lawsuit and the Attorney General’s comments at her press conference, all threaten revocation of Title IX funding.
136. Such threats of funding revocation are final, reviewable agency action. 137. DOJ relied upon DOE’s new rule redefining “sex” and, with its Ultimatum, is enforcing that rule against the State and the University System, and so against the University Students and the Minor Students and their Parents. 138. DOJ’s Ultimatum declares that Title IX requires educational institutions to permit students to use restrooms, locker rooms, and showers based on their gender identity, rather than their biological sex. 139. DOJ’s Ultimatum declares that Title IX prohibits educational institutions from maintaining sex-specific restrooms and locker rooms.
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140. DOJ’s Ultimatum, if allowed to stand, would also prohibit educational institutions from maintaining sex-specific living facilities, which Title IX specifically authorizes. 20 U.S.C. § 1686.
141. DOJ’s reliance upon DOE’s new rule is misplaced. 142. DOE’s new rule redefining “sex” in Title IX contradicts the text, structure, legislative history, and historical judicial interpretation of Title IX, all of which confirm that the term, “sex,” means male and female in the binary and biological sense. 143. According to DOE’s new legislative rule, Title IX requires educational institutions to permit students to use restrooms, locker rooms, and showers based on their gender identity, rather than their biological sex. 144. According to DOE’s new legislative rule, Title IX prohibits educational institutions from maintaining sex-specific restrooms and locker rooms. 145. DOE has communicated this new legislative rule to school districts and colleges nationwide and stated that their failure to comply with it will result in investigation and enforcement action up to and including withdrawal of billions of dollars in federal funding. 146. DOE’s promulgation and enforcement of this new legislative rule, which DOJ relies upon, are likewise reviewable actions under the Administrative Procedure Act (“APA”). 147. DOJ cannot rely upon DOE’s new rule, and enforce it against the State and University, if DOE’s new rule violates the APA and so is unlawful.
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148. DOE’s agency actions, including the creation of rules, are reviewable pursuant to 20 U.S.C § 1683.
149. DOE’s new rule is a final, reviewable agency action, and there is no other adequate remedy, because DOJ now relies upon that rule to threaten the State and University System, which causes harm to the University Students, Minor Students, and Parents.
150. North Carolinians for Privacy cannot obtain relief unless this Court declares that DOE’s actions are unlawful so that DOJ cannot rely upon them.
151. The members of North Carolinians for Privacy have suffered a legal wrong as a direct result of the DOE’s agency action, upon which DOJ relies, because North Carolinians for Privacy’s members’ constitutional and statutory rights will be violated if the State and University System submit to DOJ’s improper demand.
152. Under the APA, a reviewing Court must “hold unlawful and set aside agency action” in four instances that apply to this case:
• One: if the agency action is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C);
• Two: if the agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
• Three: if the agency action is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B); and
• Four: if the agency action is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
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153. DOE’s promulgation of its new rule, upon which DOJ relies, violates all four of these standards and so should be held unlawful and set aside.
A. DOE’s Action Is Unlawful Under the APA Because It Is In Excess of Statutory Jurisdiction, Authority, or Limitations
154. DOE’s actions in promulgating and enforcing its new rule are “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” because they redefine the unambiguous term “sex” and add gender identity to Title IX without the authorization of Congress.
155. Congress has not delegated to DOE the authority to define, or redefine, unambiguous terms in Title IX.
156. Title IX, passed in 1972, states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination…” 20 U.S.C. § 1681(a) (emphasis added).
157. The term “sex” as used in Title IX means male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex.
158. This definition is not ambiguous. 159. Title IX makes no reference to “gender identity” in the language of the statute. 160. The enacting regulations, which interpret Title IX and were promulgated in 1975, likewise make no reference to “gender identity.” 161. The legislative history of Title IX makes no reference to “gender identity.”
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162. Title IX’s implementing regulations are not ambiguous in their instruction that a school district may separate restrooms, locker rooms, and shower facilities on the basis of biological sex.
163. Title IX permits schools receiving federal funds to “maintain[] separate living facilities for the different sexes.” 20 U.S.C. § 1686.
164. The regulations implementing Title IX state that schools receiving federal funding “may provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
165. Title IX does not require that the University System, or the State, open school restrooms, locker rooms and shower rooms to the opposite biological sex.
166. DOE’s unilateral decree that “sex” in Title IX includes “gender identity,” which requires schools to allow males who identify as female to use the girls’ facilities, and vice versa, requires is not supported by Title IX’s text, implementing regulations, or legislative history.
167. The new rule is contradicted by the fact that every court to consider the question for the past four decades, prior to the DOE’s April 2015 Guidance Document equating sex discrimination with gender identity discrimination, had concluded that Title IX did not require cross-sex restrooms or locker rooms, even when students who identify as the opposite sex are involved.
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168. The new rule is contradicted by the fact that Congress has considered proposed legislation that would add Title IX style protections for gender identity discrimination, but has declined to enact it.
169. Therefore, the DOE’s rule was promulgated and enforced “in excess of statutory jurisdiction, authority or limitations, or short of statutory right[,]” See 5 U.S.C. § 706(2)(C). This Court should hold that it is unlawful and set it aside.
170. Additionally, DOE’s rule would be unlawful if it were interpretive, instead of legislative, because it violates the Constitution and federal statutes, and is also plainly erroneous and inconsistent with Title IX itself.
B. DOE’s Action Is Unlawful Under the APA Because It Is Arbitrary, Capricious, An Abuse of Discretion, or Not In Accordance With Law
171. DOE’s actions in promulgating and enforcing its new rule are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A).
172. Congress requires that whenever an agency takes action it do so after engaging in a process by which it “examine[s] the relevant data and articulate[s] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Veh. Mfrs. Ass’n. v. State Farm Ins., 463 U.S. 29, 43 (1983) (quotation omitted).
173. An agency action is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be
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ascribed to a difference in view or product of agency expertise.” State Farm, 463 U.S. at 43.
174. DOE gave no explanation whatsoever for its redefinition of “sex” in Title IX, whereby DOE unilaterally decreed that the term, “sex,” in Title IX includes gender identity.
175. Nor did DOE give any explanation of the relevant factors that were the basis of its actions.
176. DOE failed to consider important aspects of the problems caused by mixing biological boys and girls in intimate settings, including the language and structure of Title IX and its regulations; the congressional, and judicial histories of Title IX and its regulations; the practical and constitutional harms created by its unlawful application of Title IX; and, the violation of Title IX caused by this unlawful application.
177. DOE’s action was also made without a rational explanation. 178. It departed from the established Title IX policy that allowed schools to maintain private facilities separated by biological sex; and, it rested on considerations related to “gender identity,” despite the fact that the legislative history indicates Congress did not intend “sex” to mean anything other than biological sex. 179. DOE’s action was also made even though it is contrary to law or regulation.
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180. DOE’s rule purporting to redefine Title IX violates Title IX as it applies to the very group Title IX was created to protect, female students, by creating a hostile environment for them.
181. DOE’s rule is thus contrary to Title IX. 182. DOE’s new rule is also contrary to the Religious Freedom Restoration Act (“RFRA”), codified at 42 U.S.C. §§ 2000bb et seq. 183. Some of the University Students object to using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity. 184. Some of the Minor Students and Parents object to the Minor Students using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity. 185. Allowing opposite-sex students right of entry and use of restrooms and locker rooms will substantially burden these sincerely held religious beliefs. 186. RFRA does not allow the government to substantially burden free exercise of religion unless the regulation satisfies strict scrutiny review, which requires that the government demonstrate that the law or regulation furthers a compelling interest in the least restrictive means available. 187. DOJ and DOE have no compelling interest to justify forcing the University Students and the Minor Students to share restrooms and locker rooms with opposite sex persons.
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188. Also, DOJ and DOE have not used the least restrictive means of serving any interest they may have.
189. Accordingly, DOE’s new rule and DOJ’s Ultimatum, which, if implemented, would prohibit the University System and those schools maintained by the State and its political subdivisions from retaining their sex-specific restrooms and locker rooms, fails the required strict scrutiny review and is unlawful under, and contrary to, RFRA.
190. DOE’s promulgation and enforcement of its rule is thus arbitrary, capricious, an abuse of discretion, and not in accordance with law. This Court should therefore hold that it is unlawful and set it aside.
191. Additionally, DOE’s rule would be unlawful if it were interpretive, instead of legislative, because it would still be arbitrary, capricious, an abuse of discretion, and not in accordance with law, and so is due to be declared unlawful and set aside.
C. DOE’s Action Is Unlawful Under the APA Because It Is Contrary to Constitutional Right, Power, Privilege, or Immunity
192. DOE’s actions are “contrary to constitutional right, power, privilege, or immunity.” See 5 U.S.C. § 706(2)(B).
193. DOE’s legislative rule is an unlawful application of Title IX contrary to the Constitution because it violates numerous constitutional rights of the members of North Carolinians for Privacy, including the fundamental right to privacy; the fundamental liberty interest in directing the education and upbringing of one’s children; and, the First Amendment’s guarantee of free exercise of religion.
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1. Privacy Rights Are Violated 194. There is a fundamental constitutional right to bodily privacy in one’s fully or partially unclothed body. 195. This fundamental right also includes the right to be free from Statecompelled risk of intimate exposure of oneself to the opposite sex. 196. The right to be free from State-compelled risk of intimate exposure of oneself to the opposite sex, while part of the right to bodily privacy, is also separately and deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, and so is itself a fundamental constitutional right. 197. Allowing opposite-sex students right of entry and use of restrooms and locker rooms will infringe the University Students’ and the Minor Students’ fundamental right to privacy in their unclothed bodies, as well as their fundamental right to be free from government-compelled risk of intimate exposure to the opposite sex, without any compelling justification. 198. The government may not infringe fundamental rights, unless the infringement satisfies strict scrutiny review, which requires that the government demonstrate that the law or regulation furthers a compelling interest in the least restrictive means available. 199. DOJ and DOE have no compelling interest to justify forcing the University Students and the Minor Students to share restrooms and locker rooms with opposite sex persons.
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200. Also, DOJ and DOE have not used the least restrictive means of serving any interest they may have.
201. Accordingly, DOE’s new rule and DOJ’s Ultimatum, that the University System and those schools maintained by the State and its political subdivisions will face enforcement actions to revoke their federal funding if they retain their sex-specific restrooms and locker rooms, fails the required strict scrutiny review and is unconstitutional.
2. Fundamental Parental Rights Are Violated 202. The right of parents to make decisions concerning the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment’s Due Process Clause. 203. Included within that parental fundamental right is the power to direct the education and upbringing of one’s children. 204. This fundamental right gives parents the freedom, as well as the duty, to instill moral standards and values in their minor children. 205. This fundamental right encompasses the right to determine whether, and when, their minor children endure the risk of being in intimate, vulnerable settings like restrooms, locker rooms, and showers, with members of the opposite sex. 206. It also encompasses the right to determine whether their children will have to risk being exposed to opposite sex nudity at school and a fundamental right
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to determine whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex.
207. All of the Parents object to their children, the Minor Students, using restrooms and locker rooms with opposite-sex students, enduring the risk of exposure to opposite-sex nudity, and enduring the risk of exposing their own undressed or partially unclothed bodies to members of the opposite sex.
208. Allowing opposite-sex students right of entry and use of restrooms and locker rooms will infringe this fundamental parental right.
209. Defendants may not infringe fundamental rights, including parents’ fundamental right to direct the education and upbringing of their children, unless the infringement satisfies strict scrutiny review.
210. Defendants have no compelling interest to justify forcing school children to share restrooms and locker rooms with opposite sex classmates.
211. Also, Defendants have not used the least restrictive means of serving any interest they may have.
212. Accordingly, DOE’s new rule and DOJ’s Ultimatum, that those schools maintained by the State and its political subdivisions will face enforcement actions to revoke their federal funding if they retain their sex-specific restrooms and locker rooms, fails the required strict scrutiny review and is unconstitutional.
3. Free Exercise Rights Are Violated. 213. The First Amendment provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
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214. Some of the University Students object to using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
215. Some of the Minor Students and Parents object to the Minor Students using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
216. Allowing opposite-sex students right of entry and use of restrooms and locker rooms will infringe the free exercise rights of these University Students, Minor Students, and their Parents.
217. Laws that burden free exercise, but are not neutral or generally applicable, are subject to strict scrutiny.
218. DOE’s new rule and DOJ’s Ultimatum are not generally applicable because it does not allow all students to use the opposite-sex restrooms and locker rooms, but only students who perceive themselves as a different gender than their biological sex.
219. Because the DOE’s new rule and DOJ’s Ultimatum are not generally applicable, it is subject to strict scrutiny.
220. Additionally, DOE’s new rule and DOJ’s Ultimatum is subject to strict scrutiny because, in addition to burdening free exercise rights, it also burdens other constitutional rights.
221. Defendants have no compelling interest to justify forcing school children to share restrooms and locker rooms with opposite sex classmates.
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222. Also, Defendants have not used the least restrictive means of serving any interest they may have.
223. Accordingly, DOE’s new rule and DOJ’s Ultimatum, that those schools maintained by the State and its political subdivisions will face enforcement actions to revoke their federal funding if they retain their sex-specific restrooms and locker rooms, fails the required strict scrutiny review and is unconstitutional.
4. Spending Clause Requirements Are Violated 224. Also, DOE’s legislative rule is in violation of the Spending Clause of the United States Constitution, under which Title IX was enacted. 225. When Congress uses its Spending Clause power, it generates legislation much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. 226. Congress must clearly and unambiguously state the conditions to which the States are agreeing in exchange for federal funds, so that the States can knowingly decide whether to accept the funding. 227. The crucial inquiry is whether Congress spoke so clearly that it can be fairly said that the State could make an informed choice. 228. Requiring educational institutions to allow biological males access to facilities designated for females cannot pass this test, no matter how the males identify.
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229. Requiring educational institutions to allow biological females access to facilities designated for males cannot pass this test, no matter how the females identify.
230. As already explained, the plain language of the text, along with the legislative history, clearly indicates that Congress intended that (1) “sex” means “biological sex;” (2) Title IX prevents discrimination based on biological sex; and (3) Title IX allows sex-specific restrooms, locker rooms, and living facilities.
231. Further, the implementing regulations specifically allow schools to maintain restrooms and locker rooms separated by biological sex.
232. Thus, for the over 40 years of Title IX’s existence, it has been universally understood by schools that receive federal education funding that Title IX’s definition of “sex” does not include gender identity.
233. It has likewise been universally understood by schools that received federal education funding that maintaining separate restrooms, locker rooms, and other private facilities on the basis of biological sex is consistent with Title IX.
234. No school could have possibly made an informed choice to accept federal funding because no school could have known that the funds it agreed to accept were conditioned on allowing cross-sex private facilities, or otherwise recognizing gender identity as encompassed within the meaning of “sex.”
235. For these reasons, this Court should hold DOE’s actions unlawful, set aside its guidance documents, and enjoin it, along with DOJ, from further communicating the new rule that “sex” in Title IX includes “gender identity” to any
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schools, including the University System and those schools maintained by the State and its political subdivisions.
236. Additionally, DOE’s rule would be unlawful if it were interpretive, instead of legislative, because it would still be contrary to constitutional right, power, privilege, or immunity, and so is due to be declared unlawful and set aside.
D. DOE’s Action Is Unlawful Under the APA Because It Is Without Observance of Procedure Required By Law
237. DOE’s actions were done “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
238. As explained above, DOE has promulgated a new rule, unilaterally declaring that Title IX’s term, “sex,” includes “gender identity,” and that Title IX thus prohibits discrimination based on gender identity.
239. DOE’s new rule, as enforced by DOJ, also requires schools, including the University System and those schools maintained by the State and its political subdivisions, to allow biological males entry and usage of restrooms and locker rooms designated for females, and vice versa.
240. Further, DOJ has given this rule the full force of law, investigating and enforcing it against the University System and the State.
241. Under the Administrative Procedure Act, any “rules which do not merely interpret existing law or announce tentative policy positions but which establish new policy positions that the agency treats as binding must comply with the APA’s notice-and-comment requirements, regardless of how they initially are labeled.” 72 Fed. Reg. 3433.
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242. The Supreme Court has additionally ruled that all legislative rules, which are those having the force and effect of law and are accorded weight in agency adjudicatory processes, must go through the notice-and-comment requirements. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015).
243. Notice-and-comment rulemaking requires that the DOE (1) issue a general notice to the public of the proposed rule-making, typically by publishing notice in the Federal Register; (2) give interested parties an opportunity to submit written data, views, or arguments on the proposed rule, and consider and respond to significant comments received; and (3) include in the promulgation of the final rule a concise general statement of the rule’s basis and purpose.
244. Notice-and-comment rulemaking also requires that the DOE consider all the relevant comments offered during the public comment period before finally deciding whether to adopt the proposed rule.
245. Additionally, under Title IX, final rules, regulations, and orders of general applicability issued by DOE must be approved by the president of the United States.
246. DOE promulgated and enforced its new rule redefining “sex” in Title IX to include gender identity without notice and comment as required by law. 5 U.S.C. § 553. It promulgated this new legislative rule without signature by the president as required by Title IX. 20 U.S.C. § 1682.
247. Simply stated, DOE did not follow the required procedure when it adopted its new rule defining “sex” in Title IX to mean, or include, gender identity.
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248. Because DOE’s rule violates the APA, this Court should declare that DOJ cannot lawfully rely upon it as authority for the meaning of “sex” in Title IX.
WHEREFORE, North Carolinians for Privacy respectfully prays that the Court grant the relief set forth hereinafter in the Prayer for Relief.
SECOND CAUSE OF ACTION DECLARATION THAT MAINTAINING SEX-SPECIFIC RESTROOMS
AND LOCKER ROOMS DOES NOT VIOLATE TITLE IX 249. North Carolinians for Privacy realleges all matters set forth in paragraphs 1 through 248 and incorporate them herein. 250. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). 251. Title IX itself refers to “both sexes,” indicating binary, biological sex. 20 U.S.C. § 1681(a)(2). 252. Title IX also refers to “one sex” and “the other sex,” indicating binary, biological sex. 20 U.S.C. § 1681(a)(8). 253. Title IX explicitly allows educational institutions to maintain “separate living facilities for the different sexes,” indicating binary, biological sex. 20 U.S.C. § 1686. 254. Title IX’s implementing regulations, found at 34 C.F.R. Part 106, contain many similar, “one sex . . . the other sex” statements, each referring to binary, biological sex.
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255. Title IX’s implementing regulations explicitly allow sex-specific restrooms and locker rooms.
256. The implementing regulations state that educational institutions may, consistent with Title IX, “provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33 (emphasis added).
257. “[O]ne sex” and “of the other sex” in 34 C.F.R. § 106.33 refers to binary, biological sex.
258. Accordingly, DOJ’s Ultimatum, that the University System and those schools maintained by the State and its political subdivisions will imminently lose their federal funding if they retain their sex-specific restrooms and locker rooms, violates the guarantees of Title IX.
WHEREFORE, North Carolinians for Privacy respectfully prays that the Court grant the relief set forth hereinafter in the Prayer for Relief.
THIRD CAUSE OF ACTION DECLARATION THAT DOJ’S RELIANCE ON VAWA AS AUTHORITY TO ISSUE ITS ULTIMATUM AND
VIOLATE PLAINTIFF’S RIGHTS IS MISPLACED 259. North Carolinians for Privacy realleges all matters set forth in paragraphs 1 through 258 and incorporate them herein. 260. DOJ states in its Letter to the University System that VAWA requires the University System to allow biological males right of entry and use of facilities designated for females, and vice versa.
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261. VAWA requires nothing of the sort. 262. VAWA requires that no one “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the [VAWA].” 42 U.S.C.A. § 13925(13)(A) (emphasis added). 263. The programs and activities funded under VAWA include, for example, “education programs for the prevention of domestic violence, dating violence, sexual assault, and stalking,” “programs providing legal, medical, or psychological counseling, for victims of domestic violence, dating violence, sexual assault, and stalking,” the creation of “data collection and communication systems . . . linking campus security to the local law enforcement, and the distribution of “print or electronic materials to address both prevention and intervention in domestic violence, dating violence, sexual violence, and stalking.” 42 U.S.C. § 14045b(b). 264. VAWA funding does not specifically include policies or programs regulating access to bathrooms. 265. Thus, VAWA is inapposite, and DOJ’s reliance upon it for its Ultimatum to the University System is misplaced. 266. Additionally, similar to Title IX, VAWA has an express carve-out for “sex segregation” and “sex-specific programming” that “is necessary to the essential operation of a program.” 42 U.S.C.A. § 13925(13)(B). 267. The statute provides in relevant part, “If sex segregation or sex-specific programming is necessary to the essential operation of a program, nothing in this
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paragraph shall prevent any such program or activity from consideration of an individual’s sex.” Id. It continues: “In such circumstances, grantees may meet the requirements of this paragraph by providing comparable services to individuals who cannot be provided with the sex-segregated or sex-specific programming.” Id.
268. Because of constitutional privacy and free exercise concerns, separation by biological sex is “necessary to the essential operation” of the University System’s restrooms and locker rooms.
269. Because of statutory Title IX and RFRA concern, separation by biological sex is “necessary to the essential operation” of the University System’s restrooms and locker rooms.
270. Because of safety concerns, separation by biological sex is “necessary to the essential operation” of the University System’s restrooms and locker rooms.
271. These same concerns undergird the need for the State and its political subdivisions to be able to provide sex-specific restrooms and locker rooms in its schools.
272. Because separation by biological sex is necessary to the essential operation of the University System’s restrooms and locker rooms, and because VAWA therefore allows such separation, DOJ’s reliance upon VAWA for its Ultimatum to the University System is misplaced.
273. Additionally, the University System’s practice of maintaining restrooms and locker rooms separated by biological sex does not discriminate based on gender identity.
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274. The University System forbids all biological males, regardless of their gender identity, from using restrooms or locker rooms designated for females.
275. The University System similarly forbids all biological females, regardless of their gender identity, from using restrooms or locker rooms designated for males.
276. The University System therefore does not discriminate based on gender identity, but treats all biological males the same, and all biological females the same.
277. Ironically, DOJ’s Ultimatum to the University System would require the University to engage in gender-identity discrimination.
278. DOJ’s Ultimatum seeks to compel the University System to allow some, but not all, biological males the right of entry and use of female restrooms and locker rooms.
279. The determining factor between the males who would be allowed such right of entry and use, and those who would be denied it, is their gender identity.
280. Similarly, DOJ’s Ultimatum seeks to compel the University System to allow some, but not all, biological females the right of entry and use of male restrooms and locker rooms.
281. The determining factor between the females who would be allowed such right of entry and use, and those who would be denied it, is their gender identity.
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282. So, under DOJ’s Ultimatum, those biological males whose gender identity is female would be allowed access to the female restrooms and locker rooms, but those biological males whose gender identity is male would be denied such access.
283. And, under DOJ’s Ultimatum, those biological females whose gender identity is male would be allowed access to the male restrooms and locker rooms, but those biological females whose gender identity is female would be denied such access.
284. The result just described would be impermissible discrimination on the basis of gender identity, because it would make a biological male student’s gender identity the determining factor for whether he could access the female facilities, and vice versa.
285. The University System’s policy, which forbids all biological males from entering and using the female facilities, regardless of the biological males’ gender identity, and forbids all biological females from entering and using the male facilities, regardless gender identity, does not engage in gender identity discrimination, but rather treats all persons the same, regardless of their gender identity.
286. Thus, VAWA is inapposite, and DOJ’s reliance upon it for its Ultimatum to the University System is misplaced.
287. Additionally, the definition of gender identity that VAWA incorporates is found in the federal “hate crimes act.”
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288. The hate crimes act is concerned with people attacking a victim because the victim’s dress or hair style does not conform to what people typically associate with the victim’s sex.
289. In other words, the hate crimes act is concerned with gender identity in the sense of gender stereotyping (i.e., when a man is attacked because he is not masculine enough, or a woman is attacked because she is not feminine enough).
290. “Gender identity” in the hate crimes act does not contemplate situations where one does not perceive himself as being his biological sex.
291. Accordingly, DOJ’s interpretation of VAWA is not required by the hate crimes act.
292. Neither the hate crimes act nor VAWA require the University System or the State to allow students to use opposite-sex restrooms and locker rooms.
293. Neither the hate crimes act nor VAWA forbid the University System or the State from maintaining sex-specific restrooms and locker rooms.
294. Thus, VAWA is inapposite, and DOJ’s reliance upon it for its Ultimatum to the State and the University System is misplaced.
WHEREFORE, North Carolinians for Privacy respectfully prays that the Court grant the relief set forth hereinafter in the Prayer for Relief.
PRAYER FOR RELIEF WHEREFORE, North Carolinians for Privacy respectfully prays for judgment as follows and requests the following relief:
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A. That this Court declare that the Department of Education’s new rule, that redefines the word “sex” in Title IX to mean, or include, gender identity, and upon which the Department of Justice relies in issuing its Ultimatum to the State and University, violates the provisions and requirements of the Administrative Procedure Act and so is unlawful and unenforceable, by the Department of Education as well as the Department of Justice; and, that this Court declare that the Department of Justice and the Department of Education cannot rely upon an unlawful rule for purposes of determining the requirements of Title IX (Count I);
B. That this Court declare that Title IX does not require educational institutions to allow biological males the right of entry and use of female restrooms and locker rooms, and vice versa, but rather allows such institutions to maintain sex-specific facilities (Count II);
C. That this Court declare that the Violence Against Women Act does not require educational institutions to allow biological males the right of entry and use of female restrooms and locker rooms, and vice versa, but rather allows such institutions to maintain sex-specific facilities (Count III);
D. That this Court enter a preliminary and permanent injunction restraining Defendants, their officers, agents, employees, and all other persons acting in concert with them, from taking any action contrary to this Court’s Declarations, including the threatened revocation of federal funding made available to the University System and the State’s schools;
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E. That this Court retain jurisdiction of this matter for the purpose of

enforcing any Orders;

F. That this Court award North Carolinians for Privacy costs and

expenses of this action, including a reasonable attorneys’ fees award, in accordance

with 28 U.S.C. § 2412;

G. That this Court issue the requested injunctive relief without a

condition of bond or other security being required of North Carolinians for Privacy;

and

H. That this Court grant such other and further relief as the Court deems

equitable and just in the circumstances.

Respectfully submitted this 10th day of May, 2016.

JEREMY D. TEDESCO, AZ 023497* JAMES A. CAMPBELL, AZ 026737* KRISTEN WAGGONER, AZ 032382* JOSEPH E. LARUE, AZ 031348* JONATHAN CALEB DALTON, AZ 030539* ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, Arizona 85260 (480) 444-0020 (480) 444-0028 Fax kwaggoner@adflegal.org jtedesco@adflegal.org jcampbell@adflegal.org jlarue@adflegal.org cdalton@adflegal.org

By: /s/ Deborah J. Dewart DEBORAH J. DEWART, NC Bar 30602 Liberty, Life, and Law Foundation 620 E. Sabiston Drive Swansboro, NC 28584-9674 910-326-4554 877-326-4585 Fax debcpalaw@earthlink.net
Local Civil Rule 83.1 Counsel for North Carolinians for Privacy

DAVID A. CORTMAN, GA 188810* J. MATTHEW SHARP, GA 607842* ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100

49 Case 5:16-cv-00245-FL Document 1 Filed 05/10/16 Page 49 of 50

Lawrenceville, Georgia 30043 (770) 339-0774 (770) 339-6744 Fax dcortman@adflegal.org msharp@adflegal.org Counsel for North Carolinians for Privacy *Pro Hac Vice Applications Forthcoming
THIS DOCUMENT HAS BEEN ELECTRONICALLY FILED
50 Case 5:16-cv-00245-FL Document 1 Filed 05/10/16 Page 50 of 50

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINIANS FOR PRIVACY, an unincorporated nonprofit association; A.K., a minor, by and through his parent and guardian, Y.K.; C.K., a minor, by and through her parent and guardian, Y.K.; B.K., a minor, by and through his parent and guardian, Y.K.; D.H., a minor, by and through his parent and guardian, D.H.; S.H., a minor, by and through her parent and guardian, D.H.; Y.K., on behalf of himself and his minor children; D.H., on behalf of herself and her minor children; R.F., on behalf of himself and his minor child,

Case No. 1:16-CV-00845-TDS-JEP

Plaintiffs,

vs.

UNITED STATES DEPARTMENT OF JUSTICE; LORETTA E. LYNCH, in her official capacity as United States Attorney General; UNITED STATES DEPARTMENT OF EDUCATION; and JOHN B. KING, JR., in his official capacity as United States Secretary of Education,

Defendants.

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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Plaintiff North Carolinians for Privacy and the individual plaintiffs identified by their initials in the caption above (collectively, “Plaintiffs”) state as follows:
INTRODUCTION 1. Plaintiffs bring this declaratory action pursuant to 28 U.S.C.A. §§ 2201-02. Plaintiff North Carolinians for Privacy brings this action on behalf of its members, who are students in the University of North Carolina University System; students at elementary, middle, and high schools throughout North Carolina; parents of the students who are minor children; and victims of sexual assault. The individual Plaintiffs Y.K., A.K., C.K., B.K., D.H., D.H., S.H., and R.F., who are also members of North Carolinians for Privacy, bring this action on behalf of themselves as students at elementary, middle, and high schools throughout North Carolina and as parents of minor students. 2. Plaintiffs ask this Court to declare that:
a. The Department of Justice and the Department of Education may not lawfully rely on and enforce the Department of Education’s redefinition of “sex” in Title IX, because the Department’s agency action of redefining “sex” violated the Administrative Procedure Act;
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b. The maintenance of sex-specific restrooms, locker rooms, and changing facilities by educational institutions does not violate the requirements of Title IX, codified at 20 U.S.C. §§ 1681 et. seq., which prohibits discrimination in education or educational benefits and programs because of a person’s “sex”; and
c. The maintenance of sex-specific restrooms, locker rooms, and changing facilities by educational institutions does not violate the requirements of the Violence Against Women Act (“VAWA”), codified at 42 U.S.C.A. §§ 13925 et seq., which prohibits discrimination in certain programs and activities in education because of a person’s “gender identity.”1
3. Plaintiffs also ask this Court to enjoin Defendants from taking any action inconsistent with this Court’s declaration that would affect their rights or the rights of the members of North Carolinians for Privacy.
1 Unless otherwise noted, Plaintiffs use the terms “sex,” “male,” and “female” to indicate one’s sex as determined by chromosomes, birth anatomy, gametes, and reproductive system. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) (“[S]ex and sexual refer to the biological indicators of male and female (understood in the context of reproductive capacity), such as in sex chromosomes, gonads, sex hormones, and nonambiguous internal and external genitalia.”).
3
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4. The federal Department of Justice (“DOJ”) sent letters to the Governor of North Carolina, as well as the President of the University of North Carolina System, on May 4, 2016, demanding that the State and the University System allow males to use restrooms, locker rooms, and changing facilities designated for women, and to allow females to use restrooms, locker rooms, and changing facilities designated for men.
5. DOJ’s letters threatened that, if the State of North Carolina and the University System do not comply, DOJ would invoke its power to enforce Title IX through “‘any other means authorized by law,’ including judicial enforcement,” and to “enforce VAWA through civil actions,” and revoke federal funds made available pursuant to Title IX and VAWA.
6. On May 9, 2016, the DOJ filed suit against the State of North Carolina and the University System.
7. At a press conference announcing the lawsuit, United States Attorney General Loretta Lynch stated that DOJ “retain[ed] the option of curtailing federal funding” for North Carolina and its schools, including the University System.2
2 Department of Justice, “Remarks as prepared for delivery,” May 9, 2016, available at https://www.justice.gov/opa/speech/attorney-general-loretta-elynch-delivers-remarks-press-conference-announcing-complaint (last visited August 2, 2016).
4
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8. In response to a question at the press conference, Attorney General Lynch stated that “[i]t would be premature right now to give a date on when we actually will take that step” of revoking federal funds.3
9. The University System’s spokesperson has publicly stated that the University System’s federal funds, including its students’ eligibility for student loans, are at stake.4
10. The total amount of federal funds at stake is approximately $1.4 billion, while the total amount of federal student loans that the University System’s students will lose is approximately $800 million.5
11. Some of the members of North Carolinians for Privacy are students currently within the University System, or will be students within the University System beginning next year.

3 Jane Stancill, “UNC President Spellings: UNC system caught in middle of state, federal fight on HB2,” The News & Observer, May 9, 2016, available at http://www.newsobserver.com/news/local/education/article76612287.html (last visited August 2, 2016).

4 Emery P. Dalesio, “NC college system’s federal funds in crosshairs of LGBT

law,” AP, May 5, 2016, available at https://www.yahoo.com/news/north-

carolina-leaders-denounce-federal-threat-lgbt-law-071812744.html

(last

visited August 2, 2016).

5 Pete Williams et al., “DOJ Files Lawsuit Challenging North Carolina Bathroom Law,” NBC News, May 9, 2016, available at http://www.nbcnews.com/news/us-news/north-carolina-gov-pat-mccrory-facesmonday-deadline-lgbt-law-n570396 (last visited August 2, 2016).

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12. All of these students’ educational opportunities will be adversely impacted if the federal government revokes the federal funding that the University System receives.
13. Additionally, some of these students receive currently Pell Grants, federal student loans, or other sources of federal funding, all of which is now at risk.
14. These students’ current and future educational opportunities, as well as their financial ability to secure an education at colleges within the University System, are directly jeopardized by the federal government’s threats, which risk making those students ineligible to receive this federal financial assistance while attending the University System.
15. Also included within North Carolinians for Privacy are elementary and secondary school students and their parents. The individual Plaintiffs A.K., C.K., B.K., D.H., and S.H. are elementary and secondary school students, and the individual Plaintiffs Y.K. and D.H. are the parents of those students. Plaintiff R.F. is similarly a parent of a minor student.
16. Their schools are public schools in North Carolina that receive federal funding pursuant to Title IX.
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17. They are aware that the federal government has previously threatened to revoke federal funding when public school districts sought to maintain sex-specific restrooms, locker rooms, and changing facilities.
18. DOJ’s letter to the Governor indicates that DOJ requires their public elementary and secondary schools to allow male students entry and use of the restrooms, locker rooms, and changing facilities designated for females, and also to allow female students entry and use of the restrooms, locker rooms, and changing facilities designated for males.
19. DOJ is threatening to revoke the federal funding received by the schools attended by the individual Plaintiffs and other members of North Carolinians for Privacy pursuant to Title IX if the State does not require its public schools to grant such rights of entry and use.
20. Their educational opportunities will be adversely impacted if the federal government revokes their schools’ federal funding.
21. In its letters to the State and the University System, the DOJ relied on a new rule, created by the Department of Education (“DOE”) and the DOJ, that forbids educational institutions from maintaining sex-specific restrooms, locker rooms, and changing facilities.
22. DOJ also stated that Title IX and VAWA forbid sex-specific restrooms, locker rooms, and changing facilities in educational institutions.
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23. DOE’s action in creating its new rule (“the DOJ/DOE Title IX Rule”) violates the Administrative Procedure Act, codified at 5 U.S.C. §§ 500 et seq., and is unlawful, as is the DOJ’s reliance on it.
24. Title IX and VAWA both allow for sex-specific restrooms, locker rooms, and changing facilities.
25. Plaintiffs therefore seek a declaration from this Court to that effect, in order to put an immediate end to the ongoing threat to their ability to access educational opportunities at elementary, middle, and high schools throughout North Carolina and at colleges within the University System.
JURISDICTION AND VENUE 26. This action arises under 28 U.S.C. §§ 2201-02 (the “Declaratory Judgments Act”), 5 U.S.C. §§ 500 et seq. (the “Administrative Procedure Act” or the “APA”), and 20 U.S.C. §§ 1681 et seq. (“Title IX”). 27. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1361, and 1367. 28. The Court has jurisdiction to issue the requested declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57.
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29. The Court has jurisdiction to award the requested injunctive relief under 5 U.S.C. §§ 702 and 703, 20 U.S.C. § 1683, and Federal Rule of Civil Procedure 65.
30. The Court has jurisdiction to award reasonable attorneys’ fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412.
31. Venue lies in this district pursuant to 28 U.S.C. § 1391(b) and (e), because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
PLAINTIFFS North Carolinians for Privacy 32. Plaintiff North Carolinians for Privacy is an unincorporated nonprofit association organized under N.C. Gen. Stat. Ann. § 59B-1 through B15, and headquartered in Raleigh, North Carolina. 33. North Carolinians for Privacy exists to advocate for, and protect, bodily privacy in the State of North Carolina and to ensure that its members need not give up their right to privacy in order to access educational opportunities at elementary, middle, and high schools throughout North Carolina and at colleges within the University System. 34. Its members have an interest in this litigation because the action of Defendants threaten bodily privacy rights in North Carolina and their
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ability to continue to access educational opportunities at elementary, middle, and high schools throughout North Carolina and at colleges within the University System.
35. North Carolinians for Privacy’s members are all United States citizens and residents of the State of North Carolina.
36. Some of its members are directly impacted by Defendants’ actions, which threaten to revoke federal funding if the State and University System do not allow males the right of entry and use of restrooms, locker rooms, and changing facilities designated for females, and vice versa.
37. Some of its members are students within the University of North Carolina System (the “University Students”), or will be matriculating next school year as freshmen to colleges within the University System.
38. Some of its members are students in North Carolina elementary schools, middle schools, or high schools that receive federal funding (the “Minor Students”).
39. Some of its members are parents of Minor Students (the “Parents”).
40. Some of its members are victims of sexual assault.
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The Individual Plaintiffs 41. Plaintiff A.K., a minor, was enrolled in a school within the Charlotte-Mecklenburg School System last school year and is currently accepted to and plans to attend Queens Grant High School in the 2016-2017 school year. Plaintiff Y.K. is the parent and legal guardian of A.K. 42. On information and belief, Queens Grant High School does not comply with the DOJ/DOE Title IX Rule. 43. On information and belief, Queens Grant High School receives federal funding and thus is subject to the legal requirements of Title IX. 44. On information and belief, the Charlotte-Mecklenburg School System implemented a policy during the summer of 2016 that ignores governing state law in order to comply with the DOJ/DOE Title XI rule. 45. On information and belief, this new policy was put on hold because of the Supreme Court’s stay of the mandate in Gloucester County School Board v. G.G. ex rel. Grimm, No. 16A52, 2016 WL 4131636, at *1 (U.S. Aug. 3, 2016). 46. On information and belief, students attend the CharlotteMecklenburg School System who profess a gender identity that does not match their sex.
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47. On information and belief, the Charlotte-Mecklenburg School System’s new policy, once it takes effect, will permit students who profess a gender identity that does not match their sex to access multi-user facilities designated for the opposite sex, including showers, locker rooms, restrooms, changing facilities, and lodging facilities while traveling.
48. On information and belief, under the new policy, once it takes effect, the Charlotte-Mecklenburg School System will not notify parents or students that a member of the opposite sex is accessing multi-user sexdesignated facilities, including showers, locker rooms, restrooms, changing facilities, and lodging facilities while traveling.
49. While enrolled in the Charlotte-Mecklenburg School System, A.K. was required to change clothes at school for curricular activities. This included being in a state of undress within a large open single-sex locker room. No private changing stalls were available in the locker room.
50. On information and belief, the Charlotte-Mecklenburg School System’s new policy, which will permit members of the opposite sex to access multi-user sex-designated showers, locker rooms, changing facilities, and living facilities while traveling, was adopted in order to comply with the DOJ/DOE Title XI Rule.
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51. A.K. experienced anxiety and discomfort at the thought of being in a state of undress in front of a member of the opposite sex.
52. During the summer of 2016, A.K.’s parents transferred A.K. to Queens Grant High School from the Charlotte-Mecklenburg School System in order to protect A.K.’s privacy rights and alleviate the tremendous anxiety and discomfort that A.K. was experiencing at the thought of living under the Charlotte-Mecklenburg School System’s new policy.
53. On information and belief, Queens Grant High School does not permit students of the opposite sex to share multi-user sex-specific locker rooms, showers, restrooms, changing facilities, or living facilities while traveling. Therefore, that school does not comply with the DOJ/DOE Title XI rule.
54. Parent Plaintiff Y.K. expends additional funds to transport A.K. to Queens Grant High School that would not have been expended if Y.K. had not been forced to remove A.K. from the Charlotte-Mecklenburg School System.
55. Plaintiff C.K., a minor, currently attends a middle school within the Charlotte-Mecklenburg School System. Plaintiff Y.K. is the parent and legal guardian of C.K.
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56. C.K. is required to change clothes at school for curricular activities. This includes being in a state of undress within a large open singlesex locker room.
57. C.K. experiences anxiety, discomfort, and embarrassment at the thought of being in a state of undress in front of a member of the opposite sex. She is not aware of any private single-stall changing facilities. But even if she were, she would feel ostracized from the rest of her peers by being required to change away from the rest of the girls in order to avoid undressing in front of a male or seeing a male undress in front of her.
58. The fact that a male may profess a female gender identity does not reduce C.K.’s anxiety at the thought of undressing in front that individual or having that individual undress in front of her. She also fears that some males may profess a female identity as a pretense to access the locker room where she is changing.
59. C.K. has been fearful and anxious about returning to school this year because of the Charlotte-Mecklenburg School System’s new policy regarding sex-specific restrooms, locker rooms, and changing facilities. While her anxiety has been slightly allayed because the new policy is currently on hold, the thought that she will have to undress in the presence of males, and
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be subject to males undressing in front of her, once that policy goes into effect is deeply distressing to her.
60. C.K., through her parents, applied to move to a tuition-free school that protects her privacy and does not permit students of the opposite sex to share multi-user locker rooms, showers, restrooms, or living facilities while traveling. But she was waitlisted for enrollment.
61. Y.K. cannot afford to enroll C.K. in a private school that does not receive funds subject to the DOJ/DOE Title IX rule without experiencing great financial hardship.
62. B.K., a minor, attends an elementary school within the Charlotte Mecklenburg School System. Plaintiff Y.K. is the parent and legal guardian of B.K.
63. B.K. uses the restroom at school and feels anxious and uncomfortable at the thought that once the school’s new policy goes into effect, he may encounter a member of the opposite sex in the restrooms at school. B.K. is confused and anxious about this.
64. B.K. applied to move to a tuition-free school that protects B.K.’s privacy and does not permit students of the opposite sex to share multi-user restrooms and changing facilities. But he was waitlisted for enrollment.
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65. Y.K. cannot afford to enroll B.K. in a private school that does not receive funds subject to the DOJ/DOE Title IX rule without experiencing great financial hardship.
66. Y.K. is a Christian who teaches his children that boys and girls are uniquely made, that God designed them differently, and that it would violate their religious beliefs about modesty for them to undress, shower, or use the restroom in the presence of a member of the opposite sex.
67. A.K, C.K., and B.K. are Christians who believe based on their faith’s teachings about modesty that they cannot undress, shower, or use the restroom in the presence of a member of the opposite sex.
68. Y.K. believes that it is his duty as a parent to train his children according to his religious beliefs and to ensure that their privacy is not violated.
69. Plaintiff D.H., a minor, attends a high school within the Union County Public School System. Plaintiff D.H. is the parent and legal guardian of minor child D.H.
70. Minor child D.H. participates in school-related sports activities and is required to use the locker rooms to change clothes at school.
71. Minor child D.H. is anxious and uncomfortable at the thought of undressing in front of a member of the opposite sex, or being exposed to an
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undressed member of the opposite sex, regardless of whether that person professes a different gender identity.
72. If minor child D.H.’s school implements policies conforming to the DOJ/DOE Title XI rule, it would cause D.H.’s anxiety and distress to increase exponentially. That would force parent D.H. to take steps, at considerable expense and inconvenience, to remove minor child D.H. from the school in which D.H. is currently enrolled.
73. Plaintiff S.H., a minor, attends a high school within the Union County Public School System. Plaintiff D.H. is the parent and legal guardian of S.H.
74. S.H. participates in school-related sports activities and is required to use the locker rooms to change clothes at school.
75. S.H. is anxious and uncomfortable at the thought of undressing in front of a member of the opposite sex, or being exposed to an undressed member of the opposite sex, regardless of whether that person professes a different gender identity.
76. S.H. is particularly anxious because she has encountered a male in a public restroom in the past. She was very unsettled by the experience and hid in a stall until the person left.
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77. If S.H.’s school implements policies conforming to the DOJ/DOE Title XI rule, it would cause S.H.’s anxiety and distress to increase exponentially. That would force D.H. to take steps, at considerable expense and inconvenience, to remove S.H. from her school.
78. Parent D.H. is a Christian who teaches D.H. and S.H. that boys and girls are uniquely made, that God designed them differently, and that it would violate their religious beliefs about modesty for them to undress, shower, or use the restroom in the presence of a member of the opposite sex.
79. Minor children D.H. and S.H. are Christians who believe based on their faith’s teachings about modesty that they cannot undress, shower, or use the restroom in the presence of a member of the opposite sex.
80. Parent D.H. believes that it is her duty as a parent to train her children according to her religious beliefs and to ensure that their privacy and safety is not violated.
81. Plaintiff R.F. is the parent and legal guardian of a female minor who attends North Carolina School of Science and Mathematics in Durham, North Carolina.
82. North Carolina School of Science and Mathematics is a resident school and R.F.’s daughter lives in the dorms on campus, where she also changes and showers.
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83. North Carolina School of Science and Mathematics is subject to the DOJ/DOE Title IX Rule, but currently maintains secure-access-controlled dormitories based on sex.
84. On information and belief, students attend the North Carolina School of Science and Mathematics who profess a gender identity that does not match their sex, including students who are male but identify as female.
85. Under the new DOJ/DOE Title IX Rule, North Carolina School of Science and Mathematics will be forced to either forgo federal funding or permit male students to live in the female dormitories.
86. Because of the new DOJ/DOE Title IX Rule, R.F. is anxious and greatly concerned that his daughter will either have to stop attending North Carolina School of Science and Mathematics or be forced to share living facilities with one or more males.
87. Parent R.F. is a Christian who teaches his daughter that males and females are uniquely made, that God designed them differently, and that it would violate his religious beliefs about modesty for her to undress, shower, or use the restroom in the presence of a member of the opposite sex.
88. Parent R.F. believes that it is his duty as a parent to train his child according to his religious beliefs and to ensure that her privacy is not violated.
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89. If the North Carolina School of Science and Mathematics complies with the new DOJ/DOE Title IX Rule, R.F. will have to examine alternate means of education and potentially move his daughter to a different school at considerable expense.
90. No other school in North Carolina provides the same unique educational opportunities and experience as the North Carolina School of Science and Mathematics.
91. On information and belief, all schools attended by the individual Plaintiffs receive federal funding that is threatened by the DOJ/DOE Title IX Rule.
92. All individual Plaintiffs are members of North Carolinians for Privacy.
DEFENDANTS Defendant Department of Justice 93. Defendant Department of Justice is an executive agency of the United States government and is responsible for the enforcement of Title IX, 20 U.S.C. §§ 1681-1688, and its implementing regulation at 34 C.F.R. Part 106. DOJ also has authority to bring enforcement actions to enforce Title IX and VAWA.
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Defendant Attorney General Loretta E. Lynch 94. Defendant Loretta E. Lynch is the United States Attorney General. In this capacity, she is responsible for the operation and management of the DOJ. Lynch is sued in her official capacity only.
Defendant Department of Education 95. Defendant Department of Education is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of Title IX, 20 U.S.C. §§ 1681-1688, and its implementing regulation at 34 C.F.R. Part 106. 96. DOE is responsible for adopting, promulgating, and enforcing its new legislative rule interpreting “sex” in Title IX to mean, or include, gender identity.
Defendant Secretary John B. King, Jr. 97. Defendant John B. King, Jr., is the United States Secretary of Education. In this capacity, he is responsible for the operation and management of the DOE. King is sued in his official capacity only.
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STATEMENT OF FACTS I. DOJ Relies on DOE’S Unlawful Agency Action and
Misunderstandings of VAWA A. Title IX and Its Meaning 98. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…” 20 U.S.C. § 1681. 99. The regulations implementing Title IX provide, in relevant part, that “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular … or other education program or activity operated by a recipient which receives Federal financial assistance.” 34 C.F.R. § 106.31(a). 100. The implementing regulations also provide that a funding recipient shall not on the basis of sex: “Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service; … Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner; … Deny any person any such aid, benefit, or service; … Subject any person to separate or different rules of behavior, sanctions, or other
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treatment; … [or] Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.” 34 C.F.R. § 106.31(b).
101. Nothing in Title IX’s text, structure, legislative history, or accompanying regulations suggests that Title IX protects against discrimination because of one’s professed gender identity.
102. The term “gender identity” does not appear in the text of Title IX. 103. The term “gender identity” does not appear in the regulations accompanying Title IX. 104. The term “gender identity” does not appear in the legislative history relating to Title IX. 105. Indeed, recognizing that Title IX does not protect against discrimination because of “gender identity” (but only against discrimination because of sex), Senator Al Franken has repeatedly introduced legislation modeled after Title IX that would protect against discrimination because of gender identity in the education context, just as Title IX protects against discrimination because of sex. 106. That legislation has failed to pass every year it has been introduced. 107. Title IX and the accompanying regulations use the term “sex,” not “gender identity,” in describing the type of discrimination prohibited.
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108. The term “sex” as used in Title IX and its implementing regulations means male and female, under the traditional binary conception of sex.
109. Title IX also states that “nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes[,]” 20 U.S.C. § 1686, indicating that Congress intended that Title IX would respect student privacy rights.
110. Title IX’s accompanying regulations confirm that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
111. Preventing the mixing of males and females in intimate environments like restrooms, locker rooms, showers, and changing facilities is the very reason that Congress allowed for sex-specific living facilities and that Title IX regulations allow for sex-specific restrooms, locker rooms, and changing areas.
B. DOE’s Unlawful Agency Action 112. Under the Administrative Procedure Act, any “rules which do not merely interpret existing law or announce tentative policy positions but
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which establish new policy positions that the agency treats as binding must comply with the APA’s notice-and-comment requirements, regardless of how they initially are labeled.” 72 Fed. Reg. 3433.
113. Such legislative rules enacted under Title IX must also be “approved by the President” before they become effective. 20 U.S.C. § 1682.
114. DOE took agency action and declared that the term “sex” as used in Title IX’s prohibition on sex discrimination now means, or includes, “gender identity.”
115. This agency action constituted the creation of a new legislative rule, because it announced a new policy position, which the agency is treating as binding.
116. DOE announced this new legislative rule redefining “sex” to schools nationwide in several DOE guidance documents published over the last few years, including the following: U.S. Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, 5 (Apr. 2014); U.S. Department of Education, Office for Civil Rights, Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, 25 (Dec. 2014); U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, 1, 15, 16, 19, 21-22 (Apr.
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2015); U.S. Department of Education and U.S. Department of Justice, Dear Colleague Letter (May 13, 2016).
117. DOE’s new rule requires educational institutions to treat students consistently with their professed gender identity, regardless of sex.
118. DOE has enforced its new rule in numerous secondary school districts around the country.
119. For example, DOE threatened Palatine, Illinois, Township High School District 211 with the loss of $6 million dollars in federal funds if it failed to grant a male student who professed a female identity access to the girls’ locker and shower rooms.
120. Also, DOE has threatened Highland Local School District in Morrow County, Ohio with the loss of more than a million dollars in federal funds if it failed to grant a male student who professed a female identity access to girls’ restrooms, locker rooms, and overnight accommodations.
121. DOE has treated its declaration that Title IX bars gender identity discrimination as a legislative rule that is binding on all schools that are subject to Title IX.
122. DOE is actively enforcing this legislative rule against schools across the country.
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123. DOE did not comply with APA’s notice-and-comment requirements when it adopted its legislative rule redefining “sex” in Title IX to mean or include gender identity and mandating that schools give students who profess an opposite sex gender identity access to opposite sex facilities.
124. DOE’s new rule was not published for notice and comment. 125. DOE’s new rule was not signed by the President. C. DOJ’s Improper Reliance on DOE’s Unlawful Agency
Action 126. On Wednesday, May 4, 2016, the federal Department of Justice (DOJ) sent a letter to the Governor of the state of North Carolina (the “Letter to the Governor”)6 and a letter to the President of the University of North Carolina System (the “Letter to the University System”).7

6 Letter, U.S. Department of Justice Civil Rights Division to Governor Pat

McCrory,

May

4,

2016,

available

at

https://assets.documentcloud.org/documents/2823410/Civil-Rights-Division-

letter-on-HB2.pdf; Letter, U.S. Department of Justice Civil Rights Division to

Margaret Spellings, President, University of North Carolina, May 4, 2016,

available

at

http://www.charlotteobserver.com/news/politics-

government/article75647942.ece/BINARY/Read:%20DOJ%20letter%20to%20

UNC (last visited August 3, 2016).

7 Letter, U.S. Department of Justice Civil Rights Division to Margaret Spellings, President, University of North Carolina, May 4, 2016, available at http://www.charlotteobserver.com/news/politicsgovernment/article75647942.ece/BINARY/Read:%20DOJ%20letter%20to%20UNC (last visited August 3, 2016).

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127. Those letters stated that if the State and University System complied with a North Carolina law known as H.B. 2, which requires multiple occupancy restrooms or changing facilities to be designated for the use of only students of one sex, the State would violate Title VII, and the University System would violate Title VII, Title IX, and VAWA.
128. Those letters also include a demand: stop enforcing H.B. 2 or face imminent enforcement actions, including a revocation of their federal funding.
129. DOJ’s lawsuit, filed against the State and the University System, amplified that demand.
130. The letters and the lawsuit together create an unmistakable ultimatum: either submit to the will of Defendants by prohibiting sex-specific restrooms, locker rooms, and changing facilities in educational institutions, or face the consequences, including revocation of federal funds (“the Ultimatum”).
131. The Letter to the Governor notes in footnote 3 that H.B. 2 applies to local boards of education, thus recognizing that public schools are prohibited by state law from allowing males to enter and use restrooms, locker rooms, and changing facilities designated for females, and vice versa.
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132. The Letter to the Governor states that a similar provision in H.B. 2, which affects the University of North Carolina System, is a Title IX violation. Id. at 2-3.
133. The Letter to the Governor also warns that, according to DOE’s guidance, “educational institutions generally must treat [students who profess an opposite sex gender identity] consistent with their gender identity,” and that DOE’s guidance is “entitled to controlling weight.” Id. at 12 (quotations omitted).
134. The Letter to the University System states that the requirements of Title IX and its implementing regulations prohibit the University System from maintaining sex-specific restrooms, locker rooms, or changing facilities for either employees or students. Letter to the University System, supra note 7, at 2-3.
135. As authority for this statement, DOJ relies upon DOE’s new legislative rule declaring that the term “sex” in Title IX and its implementing regulations includes gender identity. Id. at 3.
136. DOJ thus relies upon DOE’s unlawful agency action to reach its determination that the State and the University System will violate Title IX if they adhere to the requirements of H.B. 2 and continue to maintain sex-
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specific restrooms, locker rooms, and changing facilities in the State’s educational institutions, including the University System.
D. DOJ’s Reliance on a Wrong Understanding of VAWA 137. In the Letter to the University System, DOJ states that VAWA prohibits the University System from discriminating based on gender identity, and intimates that VAWA therefore prohibits schools from maintaining sex-specific restrooms, locker rooms, and changing facilities. Id. at 2. 138. VAWA requires that no one, based on gender identity, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the [VAWA].” 42 U.S.C.A. § 13925(b)(13)(A) (emphasis added). 139. The programs and activities funded under VAWA include, for example, “education programs for the prevention of domestic violence, dating violence, sexual assault, and stalking,” “programs providing legal, medical, or psychological counseling, for victims of domestic violence, dating violence, sexual assault, and stalking,” the creation of “data collection and communication systems . . . linking campus security to the local law enforcement,” and the distribution of “print or electronic materials to address
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both prevention and intervention in domestic violence, dating violence, sexual violence, and stalking.” 42 U.S.C. § 14045b(b).
140. VAWA funding does not include policies or programs regulating access to restrooms, locker rooms, or changing facilities.
141. DOJ’s Letter to the University System indicates that DOJ believes that VAWA prohibits the University System and other educational institutions from maintaining sex-specific restrooms, locker rooms, and changing facilities. Letter to the University System, supra note 7, at 2.
142. VAWA does not prohibit schools from maintaining sex-specific restrooms, locker rooms, and changing facilities. II. The Harm to Plaintiff North Carolinians for Privacy’s Members
and the Individual Plaintiffs as a Result of DOJ’s Letters A. The Harm to the University Students and Victims of Sex
Assault 143. The DOJ’s threatened enforcement action, which has already commenced and includes an imminent threat to revoke the University System’s $1.4 billion in federal funding, places the University Students at immediate risk of suffering the loss of educational opportunity as a result of decreased funding to the University System.
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144. The loss of such a substantial amount of money would result in severe cutbacks in educational programs from which the University Students directly benefit.
145. This will directly harm the University Students. 146. Further, some of the University Students receive federal financial aid. 147. These University Students rely on that federal financial assistance to attend schools in the University System. 148. If DOJ revokes the University System’s eligibility for federal funding, the University Students will no longer be eligible for federal financial assistance. 149. Federal financial assistance under Title IX includes federal grants, loans, scholarships, and wages that are “authorized or extended under a law administered by the Federal agency that awards such assistance.” See 65 Fed. Reg. 52858; see also Grove City College v. Bell, 465 U.S. 555, 569 (1984) (noting that enforcement action by the DOE against a college for failure to certify compliance with Title IX would leave students receiving federal financial assistance the choice of switching colleges or foregoing the assistance).
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150. If the DOJ follows through on its threat to imminently revoke federal funding from the University System due to a Title IX violation, that revocation would also bar students from using federal scholarships, loans, grants, and wages to pay for tuition to attend a college within the System.
151. Students affected by a revocation of the University System’s federal funding would have their expenditures related to their college costs increase dramatically, forcing them to pay far more to attend a college within the System, transfer to a school outside the System, or drop out of school altogether.
152. The University System’s colleges provide one of the highest quality college educations available in North Carolina.
153. If the University Students are barred from using federal funds to attend any college within the University System, they will have to attend colleges that do not offer the same high quality educational opportunities, classes, programs, and degrees as their current schools.
154. If the University System capitulates to Defendants’ threats, the University Students will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms, locker rooms, and changing facilities with members of the opposite sex.
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155. The female University Students in particular object to the privacy violations created by allowing males the right of entry and use of restrooms, locker rooms, and changing facilities designated for females.
156. But the female University Students experience the added worry, anxiety, stress, and fear caused by the knowledge that allowing males the right of entry and use of restrooms, locker rooms, and changing facilities designated for females places them at higher risk of sexual assault.
157. The federal Center for Disease Control reports that “[i]n a nationally representative survey of adults, 37.4% of female rape victims were first raped between ages 18-24.” Center for Disease Control, Sexual Violence: Facts at a Glance (2012), available at http://www.cdc.gov/violenceprevention/pdf/sv-datasheet-a.pdf (last visited August 3, 2016).
158. The federal Center for Disease Control reports that, in a study limited to undergraduate college women, 19% experienced attempted or completed sexual assault since entering college.” Id. (emphasis added).
159. The President of the United States has stated that “[a]n estimated one in five women has been sexually assaulted during her college years.” The White House, “President Obama Launches the ‘It’s On Us’ Campaign to End Sexual Assault on Campus,” September 19, 2014, available
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at https://www.whitehouse.gov/blog/2014/09/19/president-obama-launches-itsus-campaign-end-sexual-assault-campus (last visited August 3, 2016).
160. The incidence of rape and other forms of sexual assault on college campuses may be even higher, because the President said that “only 12 percent [of sexual assaults] are reported.” Id.
161. Currently, if someone sees a male student enter the female students’ private facilities, he or she can notify campus security.
162. But if Defendants have their way, no one will be able to stop any male from entering female restrooms and locker rooms.
163. Significantly, Defendants’ understanding of Title IX does not include a “gender expression” component, but only a “gender identity” component.
164. So, according to DOJ and DOE, males do not need to present as female in order to enter and use female restrooms and locker rooms; rather, they merely must say that they identify as female.
165. The female University Students are deeply concerned that male students whose gender identity matches their male biology might take advantage of such policies for nefarious and lewd purposes.
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166. The female University Students are deeply concerned that allowing male students into their private facilities increases the likelihood that they will be assaulted or otherwise victimized.
167. Past and future victims of sex assault are harmed by the ultimatum to either open facilities based on gender identity or forgo VAWA funding that was intended to assist victims and prevent future abuse.
168. Additionally, some of the University Students object to using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
B. The Harm to the Minor Students and their Parents 169. The Minor Students, including the Minor Student members of North Carolinians for Privacy and the individual Plaintiffs, all attend schools in North Carolina that receive federal funds pursuant to Title IX. 170. Their schools, like all schools receiving federal funds, rely on those funds to provide numerous educational programs and activities. 171. The DOJ and DOE are authorized to revoke federal funds of schools found to be in violation of Title IX. 172. If the Minor Students’ schools lose their federal funds, the Minor Students will suffer the harm of fewer, or inferior, educational programs and activities.
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173. Additionally, if the Minor Students’ schools capitulate to Defendants’ threats, the Minor Students will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms, locker rooms, and changing facilities with members of the opposite sex.
174. The Minor Students’ Parents desire for their minor children to receive a high-quality public education.
175. If the Minor Students’ schools lose their federal funds, the Minor Students will suffer the harm of fewer, or inferior, educational programs and activities, and the Parents’ desire for their minor children to receive a highquality public education will be frustrated.
176. If the Minor Students’ schools capitulate to Defendants’ threats, each Parent’s right to direct the education and upbringing of their children— including their right to control whether their children will be exposed to people of the opposite sex in intimate, vulnerable settings like restrooms, locker rooms, showers, and other changing facilities—will be violated because their minor children will be compelled by the government to use restrooms, locker rooms, and changing facilities with members of the opposite sex.
177. All of the Parents object to their children, the Minor Students, using restrooms, locker rooms, and changing facilities with opposite-sex
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students, enduring the risk of exposure to opposite-sex nudity, and enduring the risk of exposing their own undressed or partially unclothed bodies to members of the opposite sex.
178. Additionally, some of the Minor Students and Parents object to the Minor Students using restrooms and locker rooms with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
ALLEGATIONS OF LAW 179. If DOJ is allowed to forbid the State from maintaining sexspecific restrooms, locker rooms, and changing facilities on its campuses, the University Students will either (1) suffer the loss of their constitutionallyguaranteed right to bodily privacy, or (2) suffer the loss of educational opportunities and their ability to access federal financial assistance, because the University System refuses to comply with DOJ’s Ultimatum, and their schools’ federal funds are revoked by the federal government. 180. If DOJ is allowed to forbid the State from maintaining sexspecific restrooms, locker rooms, and changing facilities in its local school districts, the Minor Students will either (1) suffer the loss of their constitutionally-guaranteed right to bodily privacy, or (2) suffer the loss of educational opportunities because the State refuses to comply with DOJ’s
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Ultimatum, and their schools’ federal funds are revoked by the federal government.
181. If DOJ is allowed to forbid the State from maintaining sexspecific restrooms, locker rooms, and changing facilities in local school districts, the Parents will either (1) suffer the loss of their constitutionallyguaranteed right to direct the education and upbringing of their minor children, or (2) suffer the loss of educational opportunities for their children, because the State refuses to comply with DOJ’s Ultimatum, and their schools’ federal funds are revoked by the federal government.
182. The University Students, Minor Students, and their Parents should not be forced to suffer any of these results, because providing singlesex restrooms, locker rooms, shower facilities, and changing facilities does not violate Title IX or VAWA, as DOJ’s Ultimatum claims.
183. Plaintiffs need a declaration and injunction from this Court to preserve their rights.
184. Plaintiffs have no adequate remedy at law.
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FIRST CAUSE OF ACTION DECLARATION THAT DOJ AND DOE CANNOT RELY UPON DOE’S REDEFINION OF “SEX” IN TITLE IX BECAUSE THE REDEFINITION VIOLATES THE ADMINISTRATIVE PROCEDURE
ACT 185. Plaintiffs reallege all matters set forth in paragraphs 1 through 184 and incorporate them herein. 186. DOE promulgated, and is enforcing, a new legislative rule that redefines the term “sex” in Title IX and its accompanying regulations to mean, or at least include, “gender identity.” 187. Pursuant to Executive Order 12250, the DOJ also has authority to bring enforcement actions to enforce Title IX. 188. DOJ’s enforcement of Title IX is reviewable pursuant to 20 U.S.C § 1683. 189. Threatened adverse action pursuant to Title IX constitutes final, reviewable action. 190. DOJ’s letters, along with its lawsuit and the Attorney General’s comments at her press conference, all threaten revocation of Title IX funding. 191. Such threats of funding revocation are final, reviewable agency action. 192. DOJ relied upon DOE’s new rule redefining “sex” and, with its Ultimatum, is enforcing that rule against the State and the University
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System, and so against the University Students and the Minor Students and their Parents.
193. DOJ’s Ultimatum declares that Title IX requires educational institutions to permit students to use restrooms, locker rooms, showers, and changing facilities based on their professed gender identity, which is both subjective and unverifiable.
194. DOJ’s Ultimatum declares that Title IX prohibits educational institutions from maintaining sex-specific restrooms, locker rooms, and changing facilities.
195. DOJ’s Ultimatum, if allowed to stand, would also prohibit educational institutions from maintaining sex-specific living facilities, which Title IX specifically authorizes. 20 U.S.C. § 1686.
196. DOJ’s reliance upon DOE’s new rule is misplaced. 197. DOE’s new rule redefining “sex” in Title IX contradicts the text, structure, legislative history, and historical judicial interpretation of Title IX, all of which confirm that the term, “sex,” means male and female in the binary sense. 198. According to DOE’s new legislative rule, Title IX requires educational institutions to permit students to use restrooms, locker rooms, showers, and changing facilities based on their professed gender identity.
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199. According to DOE’s new legislative rule, Title IX prohibits educational institutions from maintaining sex-specific restrooms, locker rooms, and changing facilities.
200. DOE has communicated this new legislative rule to school districts and colleges nationwide and stated that their failure to comply with it will result in investigation and enforcement action up to and including withdrawal of billions of dollars in federal funding.
201. DOE’s promulgation and enforcement of this new legislative rule, which DOJ relies upon, are likewise reviewable actions under the Administrative Procedure Act (“APA”).
202. DOJ cannot rely upon DOE’s new rule, and enforce it against the State and University, if DOE’s new rule violates the APA and so is unlawful.
203. DOE’s agency actions, including the creation of rules, are reviewable pursuant to 20 U.S.C § 1683.
204. DOE’s new rule is a final, reviewable agency action, and there is no other adequate remedy, because DOJ now relies upon that rule to threaten the State and University System, which causes harm to the University Students, Minor Students, and Parents.
205. Plaintiffs cannot obtain relief unless this Court declares that DOE’s actions are unlawful so that DOJ cannot rely upon them.
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206. The members of North Carolinians for Privacy, which include the individual Plaintiffs, have suffered a legal wrong as a direct result of the DOE’s agency action, upon which DOJ relies, because North Carolinians for Privacy’s members’ constitutional and statutory rights will be violated if the State and University System submit to DOJ’s improper demand.
207. Under the APA, a reviewing Court must “hold unlawful and set aside agency action” in four instances that apply to this case:
 One: if the agency action is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C);
 Two: if the agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
 Three: if the agency action is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B); and
 Four: if the agency action is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
208. DOE’s promulgation of its new rule, upon which DOJ relies, violates all four of these standards and so should be held unlawful and set aside.
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I. DOE’s Action Is Unlawful Under the APA Because It Is In Excess of Statutory Jurisdiction, Authority, or Limitations 209. DOE’s actions in promulgating and enforcing its new rule are “in
excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” because they redefine Title IX’s unambiguous term “sex” to mean or include gender identity without Congress’s authorization.
210. Congress has not delegated to DOE the authority to define, or redefine, unambiguous terms in Title IX.
211. Title IX, passed in 1972, states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination…” 20 U.S.C. § 1681(a) (emphasis added).
212. The term “sex” as used in Title IX means male and female, under the traditional binary conception of sex.
213. This definition is not ambiguous. 214. Title IX makes no reference to “gender identity” in the language of the statute. 215. The enacting regulations, which interpret Title IX and were promulgated in 1975, likewise make no reference to “gender identity.” 216. The legislative history of Title IX makes no reference to “gender identity.”
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217. Title IX’s implementing regulations are not ambiguous in their instruction that a school district may separate restrooms, locker rooms, and shower facilities on the basis of sex.
218. Title IX permits schools receiving federal funds to “maintain[] separate living facilities for the different sexes.” 20 U.S.C. § 1686.
219. The regulations implementing Title IX state that schools receiving federal funding “may provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
220. Title IX does not require the University System, or the other schools within the State, to open sex-specific restrooms, locker rooms, shower rooms, and changing facilities to members of the opposite sex.
221. DOE’s unilateral decree that “sex” in Title IX means or includes “gender identity,” which requires schools to allow males who profess a female gender identity to use the women’s facilities, and vice versa, is not supported by Title IX’s text, implementing regulations, or legislative history.
222. The new rule is contradicted by the fact that every court to consider the question for the past four decades, prior to the DOE’s April 2015 Guidance Document equating sex discrimination with gender identity
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discrimination, had concluded that Title IX did not require cross-sex restrooms, locker rooms, or changing facilities, even when students who profess an opposite sex gender identity are involved.
223. The new rule is contradicted by the fact that Congress has considered proposed legislation that would add Title IX style protections for gender identity discrimination, but has repeatedly and consistently declined to enact it.
224. Therefore, the DOE’s rule was promulgated and enforced “in excess of statutory jurisdiction, authority or limitations, or short of statutory right[,]” See 5 U.S.C. § 706(2)(C). This Court should hold that it is unlawful and set it aside.
225. Additionally, DOE’s rule would be unlawful if it were interpretive, instead of legislative, because it violates the Constitution and federal statutes, and is also plainly erroneous and inconsistent with Title IX itself. II. DOE’s Action Is Unlawful Under the APA Because It Is
Arbitrary, Capricious, An Abuse of Discretion, or Not In Accordance With Law 226. DOE’s actions in promulgating and enforcing its new rule are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A).
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227. Congress requires that whenever an agency takes action it do so after engaging in a process by which it “examine[s] the relevant data and articulate[s] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle. Mfrs. Ass’n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983) (quotation omitted).
228. An agency action is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or product of agency expertise.” Id.
229. DOE gave no explanation whatsoever for its redefinition of “sex” in Title IX, whereby DOE unilaterally decreed that the term, “sex,” in Title IX includes gender identity.
230. Nor did DOE give any explanation of the relevant factors that were the basis of its actions.
231. DOE failed to consider important aspects of the problems caused by mixing boys and girls in intimate settings, including the language and structure of Title IX and its regulations; the congressional, and judicial
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histories of Title IX and its regulations; the practical and constitutional harms created by its unlawful application of Title IX; and the violation of Title IX caused by this unlawful application.
232. DOE’s action was also made without a rational explanation. 233. It departed from the established Title IX policy that allowed schools to maintain private facilities separated by sex; and, it rested on considerations related to “gender identity,” despite the fact that the legislative history indicates Congress did not intend “sex” to mean anything other than objective binary sex. 234. DOE’s action was also made even though it is contrary to law or regulation. 235. DOE’s rule purporting to redefine Title IX violates Title IX as it applies to the very group Title IX was created to protect, female students, by creating a hostile environment for them. 236. DOE’s rule is thus contrary to Title IX. 237. DOE’s new rule is also contrary to the Religious Freedom Restoration Act (“RFRA”), codified at 42 U.S.C. §§ 2000bb et seq. 238. Some of the University Students object to using restrooms, locker rooms, and changing facilities with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
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239. Some of the Minor Students and Parents, including the individual Plaintiffs, object to the Minor Students using restrooms, locker rooms, and changing facilities designated for members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
240. Allowing students to enter and use restrooms, locker rooms, and changing facilities designated for members of the opposite sex will substantially burden these sincerely held religious beliefs.
241. RFRA does not allow the government to substantially burden free exercise of religion unless the regulation satisfies strict scrutiny review, which requires that the government demonstrate that the law or regulation furthers a compelling interest in the least restrictive means available.
242. DOJ and DOE have no compelling interest to justify forcing the University Students and the Minor Students to share restrooms, locker rooms, and changing facilities with people of the opposite sex.
243. Also, DOJ and DOE have not used the least restrictive means of serving any interest they may have.
244. Accordingly, DOE’s new rule and DOJ’s Ultimatum, which, if implemented, would prohibit the University System and those schools maintained by the State and its political subdivisions from retaining their
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sex-specific restrooms, locker rooms, and changing facilities, fails the required strict scrutiny review and is unlawful under, and contrary to, RFRA.
245. DOE’s promulgation and enforcement of its rule is thus arbitrary, capricious, an abuse of discretion, and not in accordance with law. This Court should therefore hold that it is unlawful and set it aside.
246. Additionally, DOE’s rule would be unlawful if it were interpretive, instead of legislative, because it would still be arbitrary, capricious, an abuse of discretion, and not in accordance with law, and so is due to be declared unlawful and set aside. III. DOE’s Action Is Unlawful Under the APA Because It Is
Contrary to Constitutional Right, Power, Privilege, or Immunity 247. DOE’s actions are “contrary to constitutional right, power, privilege, or immunity.” See 5 U.S.C. § 706(2)(B). 248. DOE’s legislative rule is an unlawful application of Title IX contrary to the Constitution because it violates numerous constitutional rights of the members of North Carolinians for Privacy and the individual Plaintiffs, including the fundamental right to privacy, the fundamental liberty interest in directing the education and upbringing of one’s children, and the First Amendment’s guarantee of free exercise of religion.
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A. Privacy Rights Are Violated 249. There is a fundamental constitutional right to bodily privacy in one’s fully or partially unclothed body. 250. This fundamental right also includes the right to be free from State-compelled risk of intimate exposure of oneself to people of the opposite sex. 251. The right to be free from State-compelled risk of intimate exposure of oneself to people of the opposite sex, while part of the right to bodily privacy, is also separately and deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, and so is itself a fundamental constitutional right. 252. Allowing opposite-sex students right of entry and use of restrooms, locker rooms, and changing facilities will infringe the University Students’ and the Minor Students’ fundamental right to privacy in their unclothed bodies, as well as their fundamental right to be free from government-compelled risk of intimate exposure to the opposite sex, without any compelling justification. 253. The government may not infringe fundamental rights, unless the infringement satisfies strict scrutiny review, which requires the government
51
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to demonstrate that the law or regulation furthers a compelling interest in the least restrictive means available.
254. DOJ and DOE have no compelling interest to justify forcing the University Students and the Minor Students to share restrooms, locker rooms, and changing facilities with people of the opposite sex.
255. Also, DOJ and DOE have not used the least restrictive means of serving any interest they may have.
256. Accordingly, DOE’s new rule and DOJ’s Ultimatum, which threaten the University System and schools maintained by the State and its political subdivisions with enforcement actions to revoke their federal funding if they retain their sex-specific restrooms, locker rooms, and changing facilities, fail strict scrutiny review and are unconstitutional.
B. Fundamental Parental Rights Are Violated 257. The right of parents to make decisions concerning the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment’s Due Process Clause. 258. Included within that parental fundamental right is the power to direct the education and upbringing of one’s children. 259. This fundamental right gives parents the freedom, as well as the duty, to instill moral standards and values in their minor children.
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260. This fundamental right encompasses the right to determine whether, and when, their minor children endure the risk of being in intimate, vulnerable settings like restrooms, locker rooms, showers, and changing facilities with members of the opposite sex.
261. It also encompasses the right to determine whether their children will have to risk being exposed to opposite sex nudity at school and whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex.
262. All of the Parents object to their children, the Minor Students, using restrooms, locker rooms, and changing facilities with opposite-sex students, enduring the risk of exposure to opposite-sex nudity, and enduring the risk of exposing their own undressed or partially unclothed bodies to members of the opposite sex.
263. Allowing opposite-sex students right of entry and use of restrooms, locker rooms, and changing facilities will infringe this fundamental parental right.
264. Defendants may not infringe fundamental rights, including parents’ fundamental right to direct the education and upbringing of their children, unless the infringement satisfies strict scrutiny review.
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265. Defendants have no compelling interest to justify forcing school children to share restrooms and locker rooms with opposite sex classmates.
266. Also, Defendants have not used the least restrictive means of serving any interest they may have.
267. Accordingly, DOE’s new rule and DOJ’s Ultimatum, which threatens schools maintained by the State and its political subdivisions with enforcement actions to revoke their federal funding if they retain their sexspecific restrooms, locker rooms, and changing facilities, fails the required strict scrutiny review and is unconstitutional.
C. Free Exercise Rights Are Violated. 268. The First Amendment provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. 269. Some of the University Students object to using restrooms, locker rooms, and changing facilities with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity. 270. Some of the Minor Students and Parents object to the Minor Students using restrooms, locker rooms, and changing facilities with members of the opposite sex because of their sincerely held religious beliefs regarding modesty and nudity.
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271. Allowing students to enter and use restrooms, locker rooms, and changing facilities designed for the opposite sex will infringe the free exercise rights of these University Students, Minor Students, and their Parents.
272. Laws that burden free exercise, but are not neutral or generally applicable, are subject to strict scrutiny.
273. DOE’s new rule and DOJ’s Ultimatum are not generally applicable.
274. Because DOE’s new rule and DOJ’s Ultimatum are not generally applicable, their actions are subject to strict scrutiny.
275. Additionally, DOE’s new rule and DOJ’s Ultimatum are subject to strict scrutiny because, in addition to burdening free exercise rights, they also burden other constitutional rights.
276. Defendants have no compelling interest to justify forcing school children to share restrooms, locker rooms, and changing facilities with opposite sex classmates.
277. Also, Defendants have not used the least restrictive means of serving any interest they may have.
278. Accordingly, DOE’s new rule and DOJ’s Ultimatum, which threaten schools maintained by the State and its political subdivisions with enforcement actions to revoke their federal funding if they retain their sex-
55
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specific restrooms, locker rooms, and changing facilities fail scrutiny review and are unconstitutional.
D. Spending Clause Requirements Are Violated 279. Also, DOE’s legislative rule is in violation of the Spending Clause of the United States Constitution, under which Title IX was enacted. 280. When Congress uses its Spending Clause power, it generates legislation much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. 281. Congress must clearly and unambiguously state the conditions to which the States are agreeing in exchange for federal funds, so that the States can knowingly decide whether to accept the funding. 282. The crucial inquiry is whether Congress spoke so clearly that it can be fairly said that the State could make an informed choice. 283. Requiring educational institutions to allow males access to facilities designated for females cannot pass this test, no matter how the males identify. 284. Requiring educational institutions to allow females access to facilities designated for males cannot pass this test, no matter how the females identify.
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285. As already explained, the plain language of the text, along with the legislative history, clearly indicates that Congress intended that (1) “sex” means objective binary sex; (2) Title IX prevents discrimination based on sex; and (3) Title IX allows sex-specific restrooms, locker rooms, and living facilities.
286. Further, the implementing regulations specifically allow schools to maintain sex-specific restrooms, locker rooms, and changing facilities.
287. Thus, for the over 40 years of Title IX’s existence, it has been universally understood by schools that receive federal education funding that Title IX’s definition of “sex” does not mean or include gender identity.
288. It has likewise been universally understood by schools that received federal education funding that maintaining separate restrooms, locker rooms, and changing facilities on the basis of sex is consistent with Title IX.
289. No school could have possibly made an informed choice to accept federal funding because no school could have known that the funds it agreed to accept were conditioned on allowing cross-sex private facilities, or otherwise recognizing gender identity as encompassed within the meaning of “sex.”
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290. For these reasons, this Court should conclude that DOE’s actions are unlawful, set aside its Title IX rule, and enjoin Defendants from further communicating or enforcing the rule that “sex” in Title IX includes “gender identity.”
291. Additionally, DOE’s rule would be unlawful if it were interpretive, instead of legislative, because it would still be contrary to constitutional right, power, privilege, or immunity, and so is due to be declared unlawful and set aside. IV. DOE’s Action Is Unlawful Under the APA Because It Is Without
Observance of Procedure Required By Law 292. DOE’s actions were done “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 293. As explained above, DOE has promulgated a new rule, unilaterally declaring that Title IX’s term “sex” includes “gender identity” and that Title IX prohibits discrimination based on gender identity. 294. DOE’s new rule, as enforced by DOJ, also requires schools, including the University System and those schools maintained by the State and its political subdivisions, to allow males entry and usage of restrooms locker rooms, and changing facilities designated for females, and vice versa. 295. Further, DOJ has given this rule the full force of law, enforcing it against the University System and the State.
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296. Under the Administrative Procedure Act, any “rules which do not merely interpret existing law or announce tentative policy positions but which establish new policy positions that the agency treats as binding must comply with the APA’s notice-and-comment requirements, regardless of how they initially are labeled.” 72 Fed. Reg. 3433.
297. The Supreme Court has additionally ruled that all legislative rules, which are those having the force and effect of law and are accorded weight in agency adjudicatory processes, must go through the notice-andcomment requirements. Perez v. Mort. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015).
298. Notice-and-comment rulemaking requires that the DOE (1) issue a general notice to the public of the proposed rule-making, typically by publishing notice in the Federal Register; (2) give interested parties an opportunity to submit written data, views, or arguments on the proposed rule, and consider and respond to significant comments received; and (3) include in the promulgation of the final rule a concise general statement of the rule’s basis and purpose.
299. Notice-and-comment rulemaking also requires that the DOE consider all the relevant comments offered during the public comment period before finally deciding whether to adopt the proposed rule.
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300. Additionally, under Title IX, final rules, regulations, and orders of general applicability issued by DOE must be approved by the President of the United States.
301. DOE promulgated and enforced its new rule redefining “sex” in Title IX to include gender identity without notice and comment as required by law. 5 U.S.C. § 553. It promulgated this new legislative rule without signature by the President as required by Title IX. 20 U.S.C. § 1682.
302. Simply stated, DOE did not follow the required procedure when it adopted its new rule defining “sex” in Title IX to mean, or include, gender identity.
303. Because DOE’s rule violates the APA, this Court should declare that DOJ cannot lawfully rely upon it as authority for the meaning of “sex” in Title IX.
WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth hereinafter in the Prayer for Relief.
SECOND CAUSE OF ACTION DECLARATION THAT MAINTAINING SEX-SPECIFIC RESTROOMS, LOCKER ROOMS, AND CHANGING FACILITIES
DOES NOT VIOLATE TITLE IX 304. Plaintiffs reallege all matters set forth in paragraphs 1 through 303 and incorporate them herein.
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305. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
306. Title IX itself refers to “both sexes,” indicating binary sex. 20 U.S.C. § 1681(a)(2).
307. Title IX also refers to “one sex” and “the other sex,” indicating binary sex. 20 U.S.C. § 1681(a)(8).
308. Title IX explicitly allows educational institutions to maintain “separate living facilities for the different sexes,” indicating binary sex. 20 U.S.C. § 1686.
309. Title IX’s implementing regulations, found at 34 C.F.R. Part 106, contain many similar, “one sex . . . the other sex” statements, each referring to binary sex.
310. Title IX’s implementing regulations explicitly allow sex-specific restrooms, locker rooms, and changing facilities.
311. The implementing regulations state that educational institutions may, consistent with Title IX, “provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for
61
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students of one sex [are] comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33 (emphasis added).
312. “[O]ne sex” and “the other sex” in 34 C.F.R. § 106.33 refers to binary sex.
313. Accordingly, DOJ’s Ultimatum, which threatens the University System and schools maintained by the State and its political subdivisions with imminent loss of their federal funding if they retain their sex-specific restrooms, locker rooms, and changing facilities, violates the guarantees of Title IX.
WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth hereinafter in the Prayer for Relief.
THIRD CAUSE OF ACTION DECLARATION THAT DOJ’S RELIANCE ON VAWA AS AUTHORITY TO ISSUE ITS ULTIMATUM AND
VIOLATE PLAINTIFFS’ RIGHTS IS MISPLACED 314. Plaintiffs reallege all matters set forth in paragraphs 1 through 313 and incorporate them herein. 315. DOJ states in its Letter to the University System that VAWA requires the University System to allow males right of entry and use of facilities designated for females, and vice versa. 316. VAWA requires nothing of the sort.
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317. VAWA requires that no one “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the [VAWA].” 42 U.S.C.A. § 13925(b)(13)(A) (emphasis added).
318. The programs and activities funded under VAWA include, for example, “education programs for the prevention of domestic violence, dating violence, sexual assault, and stalking,” “programs providing legal, medical, or psychological counseling, for victims of domestic violence, dating violence, sexual assault, and stalking,” the creation of “data collection and communication systems . . . linking campus security to the local law enforcement, and the distribution of “print or electronic materials to address both prevention and intervention in domestic violence, dating violence, sexual violence, and stalking.” 42 U.S.C. § 14045b(b).
319. VAWA funding does not specifically include policies or programs regulating access to restrooms, locker rooms, or changing facilities.
320. Thus, VAWA is inapposite, and DOJ’s reliance upon it for its Ultimatum is misplaced.
321. Additionally, similar to Title IX, VAWA has an express carve-out for “sex segregation” and “sex-specific programming” that “is necessary to the essential operation of a program.” 42 U.S.C.A. § 13925(b)(13)(B).
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322. The statute provides in relevant part: “If sex segregation or sexspecific programming is necessary to the essential operation of a program, nothing in this paragraph shall prevent any such program or activity from consideration of an individual’s sex.” Id. It continues: “In such circumstances, grantees may meet the requirements of this paragraph by providing comparable services to individuals who cannot be provided with the sexsegregated or sex-specific programming.” Id.
323. Because of constitutional privacy and free exercise concerns, separation by sex is “necessary to the essential operation” of schools’ sexspecific restrooms, locker rooms, and changing facilities.
324. Because of statutory Title IX and RFRA concerns, separation by sex is “necessary to the essential operation” of schools’ sex-specific restrooms, locker rooms, and changing facilities.
325. Because of safety concerns, separation by sex is “necessary to the essential operation” of schools’ restrooms, locker rooms, and changing facilities.
326. These concerns apply to schools within the University System and other schools operated by the State and its political subdivisions.
327. Because separation by sex is necessary to the essential operation of schools’ sex-specific restrooms, locker rooms, and changing facilities, and
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because VAWA therefore allows such separation, DOJ’s reliance upon VAWA for its Ultimatum is misplaced.
328. Additionally, schools’ practice of maintaining restrooms and locker rooms separated by sex does not discriminate based on gender identity.
329. Thus, VAWA is inapposite, and DOJ’s reliance upon it for its Ultimatum to the State and the University System is misplaced.
WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth hereinafter in the Prayer for Relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray for judgment as follows and request the following relief: A. That this Court declare that the Department of Education’s new rule, which redefines the word “sex” in Title IX to mean, or include, gender identity, and upon which the Department of Justice relies in issuing its Ultimatum to the State and University, violates the provisions and requirements of the Administrative Procedure Act and so is unlawful and unenforceable by the Department of Education and the Department of Justice; and that this Court declare that the Department of Justice and the Department of Education cannot rely upon an unlawful rule for purposes of determining the requirements of Title IX (Count I);
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B. That this Court declare that Title IX does not require educational institutions to allow males the right of entry and use of female restrooms, locker rooms, and changing facilities, and vice versa, but rather allows such institutions to maintain sex-specific facilities (Count II);
C. That this Court declare that the Violence Against Women Act does not require educational institutions to allow males the right of entry and use of female restrooms, locker rooms, and changing facilities, and vice versa, but rather allows such institutions to maintain sex-specific facilities (Count III);
D. That this Court enter a preliminary and permanent injunction restraining Defendants, their officers, agents, employees, and all other persons acting in concert with them from taking any action contrary to this Court’s Declarations, including the threatened revocation of federal funding made available to the University System and the State’s schools;
E. That this Court retain jurisdiction of this matter for the purpose of enforcing any Orders that it issues;
F. That this Court award Plaintiffs costs and expenses of this action, including a reasonable attorneys’ fees award, in accordance with 28 U.S.C. § 2412;
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G. That this Court issue the requested injunctive relief without a condition of bond or other security being required of Plaintiffs; and
H. That this Court grant such other and further relief as the Court deems equitable and just in the circumstances.
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Respectfully submitted this 22nd day of August, 2016.

/s/ James A. Campbell

/s/ Deborah J. Dewart

Jeremy D. Tedesco, AZ 023497* James A. Campbell, AZ 026737* Kristen Waggoner, AZ 032382* Kenneth J. Connelly, AZ 025420* Joseph E. LaRue, AZ 031348* J. Caleb Dalton, AZ 030539* ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, Arizona 85260 (480) 444-0020 (480) 444-0028 Fax jtedesco@adflegal.org jcampbell@adflegal.org kwaggoner@adflegal.org kconnelly@adflegal.org jlarue@adflegal.org cdalton@adflegal.org

Deborah J. Dewart, NC Bar 30602 LIBERTY, LIFE, AND LAW FOUNDATION 620 E. Sabiston Drive Swansboro, NC 28584-9674 (910) 326-4554 (877) 326-4585 Fax debcpalaw@earthlink.net
Local Civil Rule 83.1 Counsel for North Carolinians for Privacy

David A. Cortman, GA 188810* J. Matthew Sharp, GA 607842* ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, Georgia 30043 (770) 339-0774 (770) 339-6744 Fax dcortman@adflegal.org msharp@adflegal.org
Attorneys for North Carolinians for Privacy *Appearing by special appearance pursuant to L.R. 83.1(d)

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CERTIFICATE OF SERVICE

I hereby certify that on August 22, 2016, I electronically filed the

foregoing Amended Complaint with the Clerk of Court by using the CM/ECF

system, which will send notification of such filing to all CM/ECF

participating attorneys.

Date: August 22, 2016

/s/ James A. Campbell James A. Campbell

Case 1:16-cv-00845-TDS-JEP Document 58 Filed 08/22/16 Page 69 of 69

 
 18BC,CLOSED
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:16−cv−00845−TDS−JEP

NORTH CAROLINIANS FOR PRIVACY V. UNITED STATES DEPARTMENT OF JUSTICE, ET AL. Assigned to: JUDGE THOMAS D. SCHROEDER Referred to: MAG/JUDGE JOI ELIZABETH PEAKE Related Cases: 1:16−cv−00236−TDS−JEP
1:16−cv−00425−TDS−JEP
1:16−cv−00844−TDS−JEP
Case in other court: North Carolina Eastern, 5:16−cv−00245 Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 06/29/2016 Date Terminated: 09/02/2016 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

NORTH CAROLINIANS FOR PRIVACY an unincorporated nonprofit association

represented by DAVID A. CORTMAN ALLIANCE DEFENDING FREEDOM 1000 HURRICANE SHOALS ROAD, D−1100 LAWRENCEVILLE, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 15100 N. 90TH ST. SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jcampbell@ADFlegal.org ATTORNEY TO BE NOTICED

JEREMY D. TEDESCO ALLIANCE DEFENDING FREEDOM 15100 N. 90TH ST. SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jtedesco@telladf.org ATTORNEY TO BE NOTICED

JOHN MATTHEW SHARP ALLIANCE DEFENDING FREEDOM 1000 HURRICANE SHOALS RD., NE, STE. D−1100 LAWRENCEVILLE, GA 30043 770−339−0774 Fax: 770−339−6744 Email: msharp@adflegal.org ATTORNEY TO BE NOTICED

JONATHAN CALEB DALTON ALLIANCE DEFENDING FREEDOM 15100 N. 90TH ST. SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: cdalton@ADFlegal.org ATTORNEY TO BE NOTICED

Case: 1:16-cv-845 document<docnum> filed <datefiled> 1 of 16

V. Witness A. N.
Witness A. T.
Witness ALAINA KUPEC
V. Defendant

JOSEPH E. LA RUE Alliance Defending Freedom 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 ATTORNEY TO BE NOTICED
KENNETH J. CONNELLY ALLIANCE DEFENDING FREEDOM 15100 N. 90TH ST. SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: kconnelly@ADFlegal.org ATTORNEY TO BE NOTICED
KRISTEN K. WAGGONER Alliance Defending Freedom 15100 N. 90th St. Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: kwaggoner@adflegal.org ATTORNEY TO BE NOTICED
DEBORAH J. DEWART ATTORNEY AT LAW 620 E. SABISTON DRIVE SWANSBORO, NC 28584−9674 910−326−4554 Fax: 877−326−4585 Email: debcpalaw@earthlink.net ATTORNEY TO BE NOTICED
represented by SONYA PFEIFFER RUDOLF WIDENHOUSE & FIALKO 225 E. WORTHINGTON AVE., STE. 200 CHARLOTTE, NC 28203 704−333−9945 Fax: 704−335−0224 Email: spfeiffer@rudolfwidenhouse.com ATTORNEY TO BE NOTICED
represented by SONYA PFEIFFER (See above for address) ATTORNEY TO BE NOTICED
represented by SONYA PFEIFFER (See above for address) ATTORNEY TO BE NOTICED

Case: 1:16-cv-845 document<docnum> filed <datefiled> 2 of 16

UNITED STATES DEPARTMENT OF JUSTICE
Defendant LORETTA E. LYNCH in her official capacity as United States Attorney General

represented by BENJAMIN L. BERWICK U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS BRANCH 1 COURTHOUSE WAY SUITE 9200 BOSTON, MA 02210 617−748−3129 Fax: 617−748−3965 Email: Benjamin.L.Berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES 310 New Bern Ave. Suite 800 Raleigh, NC 27601 919−856−4530 Email: Mike.James@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES O. BICKFORD United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 202−305−7632 Fax: 202−616−8470 Email: James.Bickford@usdoj.gov ATTORNEY TO BE NOTICED
JASON LEE DEPARTMENT OF JUSTICE 20 MASSACHUSETTS AVE. NW WASHIGNTON, DC 20001 202−514−3367 Fax: 202−616−8476 Email: Jason.Lee3@usdoj.gov ATTORNEY TO BE NOTICED
JOSHUA E. GARDNER U. S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVE., N.W., STE. 6122 WASHINGTON, DC 20001 202−305−7583 Fax: 202−616−8460 Email: Joshua.E.Gardner@usdoj.gov ATTORNEY TO BE NOTICED
represented by BENJAMIN L. BERWICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:16-cv-845 document<docnum> filed <datefiled> 3 of 16

Defendant UNITED STATES DEPARTMENT OF EDUCATION
Defendant JOHN B. KING, JR. in his official capacity as United States Secretary of Education
Interested Party PATRICK MCCRORY

JAMES O. BICKFORD (See above for address) ATTORNEY TO BE NOTICED
JASON LEE (See above for address) ATTORNEY TO BE NOTICED
JOSHUA E. GARDNER (See above for address) ATTORNEY TO BE NOTICED
represented by BENJAMIN L. BERWICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES O. BICKFORD (See above for address) ATTORNEY TO BE NOTICED
JASON LEE (See above for address) ATTORNEY TO BE NOTICED
JOSHUA E. GARDNER (See above for address) ATTORNEY TO BE NOTICED
represented by BENJAMIN L. BERWICK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL JAMES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES O. BICKFORD (See above for address) ATTORNEY TO BE NOTICED
JASON LEE (See above for address) ATTORNEY TO BE NOTICED
JOSHUA E. GARDNER (See above for address) ATTORNEY TO BE NOTICED
represented by KARL S. BOWERS , JR. BOWERS LAW OFFICE LLC POB 50549 COLUMBIA, SC 29250

Case: 1:16-cv-845 document<docnum> filed <datefiled> 4 of 16

Interested Party FRANK PERRY
Interested Party PHILIP BERGER

803−260−4124 Email: butch@butchbowers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM W. STEWART , JR. Millberg, Gordon and Stewart, PLLC 1101 Haynes Street, Suite 104 Raleigh, NC 27604−1499 919−836−0090 Fax: 919−836−8027 Email: bstewart@mgsattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRENNAN TYLER BROOKS THOMAS MORE LAW CENTER 24 FRANK LLOYD WRIGHT DRIVE SUITE J 3200 ANN ARBOR, MI 48106 336−707−8855 Email: tbrooks@thomasmore.org ATTORNEY TO BE NOTICED
FRANK J. GORDON MILLBERG GORDON STEWART PLLC 1101 HAYNES ST., STE. 104 RALEIGH, NC 27604 919−836−0090 Fax: 919−836−8027 Email: fgordon@mgsattorneys.com ATTORNEY TO BE NOTICED
ROBERT C. STEPHENS OFFICE OF THE GENERAL COUNSEL OFFICE OF THE GOVERNOR 116 W. JONES STREET RALEIGH, NC 27699 919−814−2026 Email: bob.stephens@nc.gov ATTORNEY TO BE NOTICED
represented by KARL S. BOWERS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by STUART K. DUNCAN SCHAERR DUNCAN LLP 1717 K ST., NW, STE. 900 WASHINGTON, DC 20006 202−714−9492 Fax: 571−730−4429 Email: KDuncan@Schaerr−Duncan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
GENE C. SCHAERR SCHAERR DUNCAN LLP 1717 K ST., NW, STE. 900 WASHINGTON, DC 20006 202−787−1060

Case: 1:16-cv-845 document<docnum> filed <datefiled> 5 of 16

Interested Party TIM MOORE
Amicus PROPOSED AMICI CURIAE − TEXAS, ARKANSAS, ARIZONA, WEST VIRGINIA, ALABAMA, WISCONSIN, GEORGIA, NEBRASKA, LOUISIANA, SOUTH CAROLINA, COMMONWEALTH OF KENTUCKY, BY AND THROUGH GOVERNOR MATTHEW G. BEVIN, U

Email: GSchaerr@Schaerr−Duncan.com ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR. ATTORNEY AT LAW 5821 FAIRVIEW RD., STE. 207 CHARLOTTE, NC 28209 704−552−7742 Fax: 704−552−9287 Email: rdpotter@bellsouth.net ATTORNEY TO BE NOTICED
represented by STUART K. DUNCAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GENE C. SCHAERR (See above for address) ATTORNEY TO BE NOTICED
ROBERT D. POTTER , JR. (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID A. NIMOCKS OFFICE OF THE TEXAS ATTORNEY GENERAL SPECIAL LITIGATION DIVISION 209 W. 14TH STREET 8TH FLOOR AUSTIN, TX 78701 512−936−2541 Fax: 512−936−0545 Email: austin.nimocks@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/10/2016
05/10/2016 05/11/2016 05/11/2016
05/12/2016

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Filing fee $ 400, receipt number 0417−3678475) filed by North Carolinians for Privacy. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Proposed Summons, # 6 Proposed Summons) (Dewart, Deborah) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/10/2016)
2 Financial Disclosure Statement by North Carolinians for Privacy. (Dewart, Deborah) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/10/2016)
Notice to Counsel − All counsel must file a Notice of Appearance pursuant to Local Civil Rule 5.2(a). (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/11/2016)
3 Summonses Issued as to All Defendants. (*NOTICE: Counsel shall print the attached summonses and serve with other case opening documents in accordance with Fed.R.Civ.P. 4.*) (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/11/2016)
4 Notice of Appearance filed by Deborah J. Dewart on behalf of North Carolinians for Privacy. (Dewart, Deborah) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/12/2016)

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05/16/2016 05/16/2016 05/16/2016 05/17/2016 05/17/2016 05/23/2016 05/24/2016 05/24/2016 05/24/2016 06/14/2016 06/14/2016
06/15/2016
06/16/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016

5 Notice of Appearance for non−district counsel by David A. Cortman on behalf of North Carolinians for Privacy. (Cortman, David) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/16/2016)
6 Notice of Appearance for non−district counsel by Joseph E. La Rue on behalf of North Carolinians for Privacy. (La Rue, Joseph) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/16/2016)
7 Notice of Appearance for non−district counsel by Jeremy D. Tedesco on behalf of North Carolinians for Privacy. (Tedesco, Jeremy) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/16/2016)
8 Notice of Appearance for non−district counsel by James A. Campbell on behalf of North Carolinians for Privacy. (Campbell, James) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/17/2016)
9 Notice of Appearance for non−district counsel by Kristen K. Waggoner on behalf of North Carolinians for Privacy. (Waggoner, Kristen) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/17/2016)
10 Notice of Appearance for non−district by John Matthew Sharp on behalf of North Carolinians for Privacy. (Sharp, John) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/23/2016)
11 Notice of Appearance for non−district by Jonathan Caleb Dalton on behalf of North Carolinians for Privacy. (Dalton, Jonathan) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/24/2016)
12 MOTION to Consolidate Cases filed by North Carolinians for Privacy. (Attachments: # 1 Text of Proposed Order) (Dewart, Deborah) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/24/2016)
13 Memorandum in Support regarding 12 MOTION to Consolidate Cases filed by North Carolinians for Privacy. (Dewart, Deborah) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 05/24/2016)
14 Notice of Appearance filed by James O. Bickford on behalf of All Defendants. (Bickford, James) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/14/2016)
15 Memorandum in Opposition regarding 12 MOTION to Consolidate Cases filed by John B. King, Jr, Loretta E. Lynch, United States Department of Education, United States Department of Justice. (Bickford, James) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/14/2016)
**** Set Hearing − Telephonic Rule 16 Status Conference and Motion Hearing as to 12 MOTION to Consolidate Cases set for 6/21/2016 at 10:00 AM before District Judge Louise Wood Flanagan. *Counsel will be provided dial−in instructions in advance of the telephonic hearing* (Tripp, S.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/15/2016)
16 Notice of Appearance filed by Michael James on behalf of All Defendants. (James, Michael) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/16/2016)
17 Notice of Appearance filed by Brennan Tyler Brooks on behalf of Patrick McCrory. (Brooks, Brennan) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
18 Notice of Appearance filed by William W. Stewart, Jr. on behalf of Patrick McCrory. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
19 Notice of Appearance filed by Frank J. Gordon on behalf of Patrick McCrory. (Gordon, Frank) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
20 Notice of Appearance for non−district by Karl S. Bowers, Jr. on behalf of Patrick McCrory, Frank Perry. (Bowers, Karl) [Transferred from North Carolina Eastern on

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06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/20/2016
06/20/2016 06/20/2016 06/21/2016 06/21/2016
06/28/2016

6/29/2016.] (Entered: 06/17/2016)
21 RESPONSE to Motion regarding 12 MOTION to Consolidate Cases filed by Patrick McCrory, Frank Perry. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
22 Financial Disclosure Statement by Patrick McCrory. (Stewart, William) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
23 Financial Disclosure Statement by Frank Perry. (Bowers, Karl) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
24 REPLY to Response to Motion regarding 12 MOTION to Consolidate Cases filed by North Carolinians for Privacy. (Campbell, James) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
Motion Submitted to District Judge Louise Wood Flanagan − 12 MOTION to Consolidate Cases. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
25 Notice of Appearance filed by Stuart K. Duncan on behalf of Philip Berger, Tim Moore. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
26 Notice of Appearance filed by Robert D. Potter, Jr. on behalf of Philip Berger, Tim Moore. (Potter, Robert) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
27 RESPONSE in Support regarding 12 MOTION to Consolidate Cases filed by Philip Berger, Tim Moore. (Duncan, Stuart) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
28 Notice of Appearance filed by Gene C. Schaerr on behalf of Philip Berger, Tim Moore. (Schaerr, Gene) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/17/2016)
NOTICE OF DEFICIENCY regarding: 25 Notice of Appearance, 28 Notice of Appearance − Counsel failed to attach a certificate of service pursuant to Fed. R. Civ. P. 5(d) and Section F(3) of the Court's CM/ECF Electronic Policies and Procedures Manual. Counsel should file a separately captioned certificate of service using the appropriate event located under the Civil Events − Service of Process category. (Tripp, S.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/20/2016)
Remark − 27 RESPONSE in Support submitted to District Judge Louise Wood Flanagan. (Tripp, S.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/20/2016)
29 Certificate of Service filed by Philip Berger, Tim Moore regarding 28 Notice of Appearance . (Schaerr, Gene) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/20/2016)
30 Notice of Appearance filed by Robert C. Stephens on behalf of Patrick McCrory. (Stephens, Robert) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/21/2016)
31 Minute Entry for proceedings held before District Judge Louise Wood Flanagan in New Bern: Telephonic Rule 16 Status Conference and Motion Hearing as to 12 MOTION to Consolidate Cases held on 6/21/2016. Counsel present for all parties. Court hears oral argument as to motion and procedural posture of the case. Matters taken under advisement. Written order to follow. (Court Reporter − David Collier) (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/21/2016)
32 *DOCUMENT CORRECTED AND REFILED AT DOCKET ENTRY 33 * − Affidavit of Service for Summons and Complaint filed by North Carolinians for Privacy served on Defendants on 06/21/2016. (Campbell, James) Modified on 6/29/2016 to insert refiling information. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/28/2016)

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06/28/2016
06/28/2016 06/29/2016 06/29/2016 06/30/2016 07/12/2016 07/13/2016 07/13/2016
07/14/2016

NOTICE OF DEFICIENCIES regarding 32 Affidavit of Service − Filing is not text searchable. Local Civil Rule 5.1 requires that all documents submitted for filing be in a text searchable format. Also, supporting documents should be filed as attachments to the underlying filing. Pursuant to Section L(2) of the court's CM/ECF Policies and Procedures Manual, attachments and exhibits must be identified with a clear and complete description of the document. Each exhibit or attachment must be separated as a filing party would do when creating a hard copy version of the documents. When filing a document with more than five (5) exhibits or attachments, the first attached document must be an index of all of the subsequently attached documents. Counsel is directed to refile the document with the necessary corrections. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/28/2016)
33 Affidavit of Service for Summons and Complaint filed by North Carolinians for Privacy served on Defendants on 06/21/2016. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − US Dept of Justice, # 3 Exhibit B − Loretta Lynch, # 4 Exhibit C − US Dept of Education, # 5 Exhibit D − John B King Jr, # 6 Exhibit E − US Attorney Civil Process Clerk, # 7 Exhibit F − US Attorney General, # 8 Exhibit G − James Bickford) (Campbell, James) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/28/2016)
34 ORDER denying 12 Motion to Consolidate Cases − On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16−CV−240−FL and case number 5:16−CV−245−FL to the Middle District. Signed by District Judge Louise Wood Flanagan on 6/29/2016. (Baker, C.) [Transferred from North Carolina Eastern on 6/29/2016.] (Entered: 06/29/2016)
35 Case transferred in from District of North Carolina Eastern; Case Number 5:16−cv−00245. Original file certified copy of transfer order and docket sheet received. (Entered: 06/29/2016)
Case ASSIGNED to JUDGE THOMAS D. SCHROEDER and MAGISTRATE JUDGE JOI ELIZABETH PEAKE. Set flag for Magistrate Judge Joi Elizabeth Peake. (Coyne, Michelle) (Entered: 06/30/2016)
Telephone Conference set for 7/13/2016 at 1:00 PM before JUDGE THOMAS D. SCHROEDER. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845(Engle, Anita) (Entered: 07/12/2016)
36 NOTICE of Appearance by attorney BENJAMIN L. BERWICK on behalf of Defendants JOHN B. KING, JR, LORETTA E. LYNCH, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF JUSTICE (BERWICK, BENJAMIN) (Entered: 07/13/2016)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Telephone Conference held on 7/13/2016. Participating in the call: Attorney Smith for Carca&#241o Plaintiffs, Attorney Stoughton for Plaintiff United States, Attorney Campbell for Plaintiff/Proposed Intervenor North Carolinians for Privacy, Attorney Duncan for Legislative Plaintiffs/Intervenors, Attorney Berwick for Defendant United States, Attorney Bowers for State Defendants, Attorney Francisco for UNC Defendants, Attorney Boizelle for Amici 68 Companies, Attorney Sigmon for Proposed Amici School Administrators, and Proposed Pro se Intervenor Steven−Glenn: Johnson. Written Order forthcoming. (Court Reporter Briana Nesbit.) Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/13/2016)
37 ORDER signed by JUDGE THOMAS D. SCHROEDER on 07/14/2016; Parties in case 1:16CV236 shall appear on Monday, August 1, at 10:00 a.m. in Courtroom 1 of the Hiram H. Ward Federal Building, Winston−Salem, North Carolina, for a hearing on the Carcano Plaintiffs' motion for preliminary injunction (Doc. 21 in 1:16CV236) and UNC defendants' motion to stay proceedings (Doc. 38 in 1:16CV236). Counsel for United States may participate in the hearing as set out. Trial on merits, etc. in United States' action to be consolidated with hearing on United States' motion for preliminary injunction (Doc. 73 in 1:16cv425). Trial in all four HB2 cases will take place in late October or early November, 2016 depending on pretrial schedule to be determined by the Magistrate Judge as set out. Parties shall file a short joint notice identifying any agreements reached and explaining their respective positions no later than 5:00 p.m. on

Case: 1:16-cv-845 document<docnum> filed <datefiled> 9 of 16

07/14/2016 07/15/2016 07/15/2016 07/15/2016 07/19/2016
07/20/2016 07/20/2016 07/20/2016 07/21/2016 07/22/2016

July 22, 2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) Docket entry modified on 7/19/2016. (Powell, Gloria). (Entered: 07/14/2016)
Set Deadlines: Joint Notice due by 7/22/2016 no later than 5:00 PM. (See 86 Order in 16CV236, 93 Order in 16CV425, 29 Order in 16CV844, and 37 Order in 16CV845) Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/14/2016)
38 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/15/2016; that this matter is set for an Initial Pretrial Conference on July 22, 2016, at 1:00 p.m. in Courtroom 3 of the United States Courthouse in Winston−Salem, North Carolina. FURTHER ORDERED that the parties must file their Rule 26(f) Report(s), whether jointly or individually, by July 20, 2016, as noted herein. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/15/2016)
Set Initial Pretrial Conference: Initial Pretrial Conference set for 7/22/2016 at 1:00 PM in Winston−Salem Courtroom #3. (See 88 Order in 16CV126; 94 Order in 16CV425; 30 Order in 16CV844; 38 Order in 16CV845) Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/15/2016)
Set Rule 26(f) Report Deadline: Rule 26(f) Report (jointly or individually) due by 7/20/2016. (See 88 Order in 16CV126; 94 Order in 16CV425; 30 Order in 16CV844; 38 Order in 16CV845) Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/15/2016)
39 Transcript of Telephonic status conference held on 7/13/2016, before Judge Thomas D. Schroeder. Court Reporter Briana Nesbit, Telephone number (336)734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 8/12/2016. Redacted Transcript Deadline set for 8/22/2016. Release of Transcript Restriction set for 10/20/2016. Associated Cases: 1:16−cv−00845−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP(Nesbit, Briana) (Entered: 07/19/2016)
40 NOTICE of Appearance by attorney JOSHUA E. GARDNER on behalf of Defendants JOHN B. KING, JR, LORETTA E. LYNCH, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF JUSTICE (GARDNER, JOSHUA) (Entered: 07/20/2016)
41 Rule 26(f) Report (Individual). by NORTH CAROLINIANS FOR PRIVACY.(CAMPBELL, JAMES) (Entered: 07/20/2016)
42 Rule 26(f) Report (Individual). by JOHN B. KING, JR, LORETTA E. LYNCH, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF JUSTICE.(BERWICK, BENJAMIN) (Entered: 07/20/2016)
Motions Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: 41 Rule 26(f) Report (Individual) and, 42 Rule 26(f) Report (Individual). (Engle, Anita) (Entered: 07/21/2016)
43 STATEMENT Joint Statement Regarding Overlapping Claims by Plaintiff NORTH CAROLINIANS FOR PRIVACY. (CAMPBELL, JAMES) (Entered: 07/22/2016)

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07/22/2016
07/22/2016 07/22/2016 07/22/2016 07/22/2016 07/25/2016 07/27/2016 07/28/2016
07/29/2016

Minute Entry for proceedings held before MAG/JUDGE JOI ELIZABETH PEAKE: Pretrial Scheduling Conference held on 7/22/2016 in WS−3. Present at the conference were: Attorney Wilkins for Carca&#241o Plaintiffs, Attorney Stoughton for Plaintiff United States, Attorney Dalton for Plaintiff/Proposed Intervenor North Carolinians for Privacy, Attorney Duncan for Legislative Plaintiffs/Intervenors, Attorney Gardner for Defendant United States, Attorney Bowers for State Defendants, and Attorney Francisco for UNC Defendants. The Court sets Telephone Status Conferences for 8/19/2016, 9/2/2016, 9/16/2016 and 9/30/2016 at 10:00 AM before Judge Peake. Joint Status of Issues to be Resolved to be filed by the close of business the Wednesday before each scheduled Telephone Status Conference. If no Status Conference is necessary, Parties are to notify Case Manager. In light of Scheduling Conference, Defendant McCrory's Motion for Leave to Conduct Expedited Discovery (Doc. 52 in 1:16CV236) is moot and Motion to Intervene filed by North Carolinians for Privacy (Doc. 58 in 1:16CV425) is withdrawn. Written Order forthcoming.(Court Reporter Briana Nesbit.) Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 8/19/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 9/2/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 9/16/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
Set Hearing: Telephone Status Conference set for 9/30/2016 at 10:00 AM before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 07/22/2016)
44 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/25/2016; that the Court adopts the Joint Rule 26(f) Report and the discovery schedule set forth above. FURTHER ORDERED that this matter is set for telephonic conferences at 10:00 am on August 19, 2016, September 2, 2016, September 16, 2016, and September 30, 2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Garland, Leah) (Entered: 07/25/2016)
45 NOTICE of Appearance by attorney KENNETH J. CONNELLY on behalf of Plaintiff NORTH CAROLINIANS FOR PRIVACY (CONNELLY, KENNETH) (Entered: 07/27/2016)
46 ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 7/28/2016, that the Court adopts the briefing schedule set out in the Joint Notice (Doc. # 112 ) in 1:16CV425, but any issues that the parties wish to raise in these cases should still be addressed in the dispositive motions and trial briefs on the schedule set out in the July 25, 2016 Scheduling Order, so that all of the relevant issues can be addressed in November after the period of expedited discovery. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Daniel, J) (Entered: 07/28/2016)
47 Transcript of Pretrial Scheduling Conference held on 7/22/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number (336) 734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

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08/04/2016 08/04/2016
08/04/2016 08/04/2016
08/04/2016

Redaction Request due 8/22/2016. Redacted Transcript Deadline set for 9/1/2016. Release of Transcript Restriction set for 10/31/2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 07/29/2016)
Telephone Conference set for 8/4/2016 at 4:00 P.M. before JUDGE THOMAS D. SCHROEDER. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845(Engle, Anita) (Entered: 08/04/2016)
48 Transcript of Preliminary Injunction held on 8/1/2016, before Judge Thomas D. Schroeder. Court Reporter Briana L. Nesbit, Telephone number (336) 734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 8/29/2016. Redacted Transcript Deadline set for 9/9/2016. Release of Transcript Restriction set for 11/7/2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 08/04/2016)
Minute Entry for proceedings held before JUDGE THOMAS D. SCHROEDER: Telephone Conference held on 8/4/2016. Participating in the call: Attorney Smith for Carca&#241o Plaintiffs, Attorney Stoughton for Plaintiff United States, Attorney Campbell for Plaintiff North Carolinians for Privacy, Attorney Duncan for Legislative Intervenors, Attorney Berwick for Defendant United States, Attorney Bowers for State Defendants, Attorney Francisco for UNC Defendants, and Attorney Smith for Proposed Amici School Administrators. Written Order forthcoming. (Court Reporter Briana Nesbit.) Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845(Engle, Anita) (Entered: 08/04/2016)
TEXT ORDER signed by JUDGE THOMAS D. SCHROEDER on 8/4/2016. On August 3, 2016, the Supreme Court issued a stay of the Fourth Circuit's mandate in G.G. v. Gloucester County School Board, case number 16A52, which held that the U.S. Department of Education's guidance as to the interpretation of "on the basis of sex" in its regulation implementing Title IX was entitled to Auer deference. As a result of today's telephone hearing, the court directs the parties to address the following: (1) whether, and if so how, the Supreme Court's stay of the mandate in G.G. v. Gloucester County School Board affects this court, including as to the rules of law this court must apply; (2) this courts authority to grant preliminary injunctive relief, on a facial basis or otherwise, beyond the scope of the individually named Plaintiffs (both under Title IX and as a constitutional matter). Plaintiffs' briefs are due by 5:00 p.m. Monday, August 8, 2016. Defendants' responses are due by noon on Friday, August 12, 2016. Briefs are limited to 20 pages per side, and the parties are encouraged to work together. In addition, the parties are directed to meet and confer to determine if there is any value in adjusting the pretrial or trial schedule and whether or not there is agreement to participate in this district's mediation process. Parties are to report back via letter to Ms. Engle as to the results of the conference by 5:00 p.m. on August 8, 2016. SO ORDERED. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845(Engle, Anita) (Entered: 08/04/2016)
49 NOTICE of Hearing: Bench Trial set for 11/14/2016 at 09:30 AM in Winston−Salem Courtroom #1 before JUDGE THOMAS D. SCHROEDER. Exhibit and witness lists and deposition designations shall be filed no later than October 24, 2016. Any objections thereto, as well as any counter−designations, shall be filed no later than November 2, 2016. Pre−trial briefs shall be submitted no later than November 7, 2016. No opposition briefs shall be allowed. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845(Engle, Anita) (Entered: 08/04/2016)

Case: 1:16-cv-845 document<docnum> filed <datefiled> 12 of 16

08/05/2016 08/05/2016 08/05/2016
08/08/2016 08/08/2016 08/09/2016 08/10/2016 08/12/2016 08/17/2016 08/18/2016 08/18/2016 08/19/2016
08/22/2016 08/24/2016

50 MOTION for Leave to File Amended Complaint by NORTH CAROLINIANS FOR PRIVACY. Responses due by 8/29/2016 (Attachments: # 1 Exhibit Amended Complaint, # 2 Text of Proposed Order)(CAMPBELL, JAMES) (Entered: 08/05/2016)
51 Partially Unopposed MOTION by NORTH CAROLINIANS FOR PRIVACY to Proceed Using Intitials. Responses due by 8/29/2016. (Attachments: # 1 Text of Proposed Order)(CAMPBELL, JAMES) Modified document title on 8/8/2016. (Daniel, J) (Entered: 08/05/2016)
52 MEMORANDUM filed by Plaintiff NORTH CAROLINIANS FOR PRIVACY re 51 Partially Unopposed MOTION to Proceed Using Initials . (Attachments: # 1 Exhibit 1 − Declaration of S.B., # 2 Exhibit 2 − Declaration of E.S., # 3 Exhibit 3 − Declaration of D.H.)(CAMPBELL, JAMES) Modified document title on 8/8/2016. (Daniel, J) (Entered: 08/05/2016)
Motion Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: 50 MOTION for Leave to File Amended Complaint. (Engle, Anita) (Entered: 08/08/2016)
53 NOTICE by JOHN B. KING, JR, LORETTA E. LYNCH, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF JUSTICE Regarding Supplemental Brief (BERWICK, BENJAMIN) (Entered: 08/08/2016)
54 MOTION for Extension of Time to File Answer by JOHN B. KING, JR, LORETTA E. LYNCH, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(LEE, JASON) (Entered: 08/09/2016)
Motions Referred to MAG/JUDGE JOI ELIZABETH PEAKE RE: 51 MOTION to Proceed under Fictitious Name and 54 MOTION for Extension of Time to File Answer. (Engle, Anita) (Entered: 08/10/2016)
55 NOTICE by NORTH CAROLINIANS FOR PRIVACY (CAMPBELL, JAMES) (Entered: 08/12/2016)
56 NOTICE by PHILIP BERGER, TIM MOORE re 44 Rule 26f (Joint),, Order on Rule 26f Report − Individual,,,,, JOINT NOTICE OF ISSUES FOR STATUS CONFERENCE (POTTER, ROBERT) (Entered: 08/17/2016)
CASE REFERRED to MAG/JUDGE JOI ELIZABETH PEAKE RE: Joint Notice of Issues for Status Conference ( 119 in 1:16cv236), ( 56 in 1:16cv845), ( 147 in 1:16cv425). Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845 (Engle, Anita) (Entered: 08/18/2016)
TEXT ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 8/18/2016 CANCELLING the Telephone Status Conference set for 8/19/2016 at 10:00 AM. Parties are directed to file a Joint Status Report by Wednesday, 8/24/2016. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845 (Engle, Anita) (Entered: 08/18/2016)
57 ORDER Signed by MAG/JUDGE JOI ELIZABETH PEAKE on 08/19/16. IT IS THEREFORE ORDERED that Plaintiffs Unopposed Motion for Leave to File Amended Complaint 50 is GRANTED and Plaintiff must file its Amended Complaint as a separate pleading within seven (7) days of the date of this Order. IT IS FURTHER ORDERED that Defendants Unopposed Motion for Extension of Time 54 is GRANTED and Defendants deadline for filing a response to Plaintiffs Amended Complaint is extended to September 6, 2016. FINALLY, IT IS ORDERED that Plaintiffs Partially Unopposed Motion to Proceed Using Initials 51 is GRANTED as set out herein, and any remaining issues will be addressed at the next pretrial status conference. (Garrett, Kim) (Entered: 08/19/2016)
58 First AMENDED COMPLAINT against defendant All Defendants, filed by NORTH CAROLINIANS FOR PRIVACY.(CAMPBELL, JAMES) (Entered: 08/22/2016)
59 NOTICE by PHILIP BERGER, PATRICK MCCRORY, TIM MOORE, NORTH CAROLINIANS FOR PRIVACY, FRANK PERRY JOINT NOTICE OF ISSUES FOR STATUS CONFERENCE (STEWART, WILLIAM) (Entered: 08/24/2016)

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08/25/2016 08/25/2016
08/25/2016 08/30/2016 08/31/2016 08/31/2016
08/31/2016 09/02/2016 09/09/2016

CASES REFERRED to MAG/JUDGE JOI ELIZABETH PEAKE RE: Joint Notice of Issues for Status Conference ( 126 in 1:16cv236, 155 in 1:16cv425, and 59 in 1:16cv845). Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845 (Engle, Anita) (Entered: 08/25/2016)
TEXT ORDER signed by MAG/JUDGE JOI ELIZABETH PEAKE on 8/25/2016. In light of the Joint Notice filed by the parties, the Court will not set this matter for a status conference on August 26, 2016. However, it appears that a status conference in the near future would be appropriate, in order to address any discovery and scheduling issues. Therefore, the Court will plan to conduct a discovery status conference on September 2, 2016, and given the potential issues to be addressed, the Court will conduct that status conference in person rather than by telephone hearing. Therefore, this matter will be set for a discovery status conference on September 2, 2016 at 10:00 a.m. in Courtroom 3 of United States Courthouse in Winston−Salem, NC. The parties should file their Joint Notice by August 31, 2016 to outline any issues that they would seek to raise at the status conference. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845 (Engle, Anita) (Entered: 08/25/2016)
Set Hearing: Status Conference set for 9/2/2016 at 10:00 AM in Winston−Salem Courtroom #3 before MAG/JUDGE JOI ELIZABETH PEAKE. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv845(Engle, Anita) (Entered: 08/25/2016)
60 Consent MOTION for Extension of Time to File Answer by JOHN B. KING, JR, LORETTA E. LYNCH, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(BERWICK, BENJAMIN) (Entered: 08/30/2016)
ORDER granting 60 Motion for Extension of Time to Answer for All Defendants. Answer due by 9/20/2016. Signed by John Brubaker, Clerk of Court, on 08/31/2016. (Brubaker, John) (Entered: 08/31/2016)
62 ***FILED IN ERROR*** MOTION for Leave to File Brief as Amici Curiae by Proposed Amici Curiae − TEXAS, ARKANSAS, ARIZONA, WEST VIRGINIA, ALABAMA, WISCONSIN, GEORGIA, NEBRASKA, LOUISIANA, SOUTH CAROLINA, COMMONWEALTH OF KENTUCKY, by and through Governor Matthew G. Bevin, U. (Attachments: # 1 Supplement, # 2 Text of Proposed Order) Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(NIMOCKS, DAVID) Modified on 9/2/2016 to reflect filed in error and terminated public access. (Daniel, J) (Entered: 08/31/2016)
63 NOTICE of Voluntary Dismissal of case by Plaintiff NORTH CAROLINIANS FOR PRIVACY Associated Cases: 1:16−cv−00845−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP(CAMPBELL, JAMES) Modified on 9/12/2016 to reflect filed in error and terminated public access. (Daniel, J) Modified on 12/16/2016. Document terminated in error. (Engle, Anita). (Entered: 08/31/2016)
Civil Case Terminated. (Daniel, J) (Entered: 09/02/2016)
66 Transcript of Proceedings held on 09/02/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 10/3/2016. Redacted Transcript Deadline set for 10/14/2016. Release of Transcript Restriction set for 12/12/2016. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 09/09/2016)

Case: 1:16-cv-845 document<docnum> filed <datefiled> 14 of 16

10/07/2016
10/14/2016
10/18/2016 10/18/2016 10/24/2016 11/15/2016

67 Transcript of Status Conference held on 09/16/2016, before Magistrate Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 10/31/2016. Redacted Transcript Deadline set for 11/10/2016. Release of Transcript Restriction set for 1/9/2017. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 10/07/2016)
68 Transcript of Status Conference held on 09/30/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 11/7/2016. Redacted Transcript Deadline set for 11/17/2016. Release of Transcript Restriction set for 1/17/2017. Associated Cases: 1:16−cv−00236−TDS−JEP, 1:16−cv−00425−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP (Nesbit, Briana) (Entered: 10/14/2016)
69 ***FILED IN ERROR*** NOTICE of Appearance by attorney SONYA PFEIFFER on behalf of Witnesses A. N., A. T., Alaina Kupep. Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(PFEIFFER, SONYA) Modified on 12/16/2016 to reflect filed in error − see 12/16/2016 TEXT Order. (Daniel, J) (Entered: 10/18/2016)
70 ***FILED IN ERROR*** MOTION of Non−Party Witnesses to Join United States' Motion to Partially Quash and Modify Defendants' Subpoenas Duces Tecum and for a Protective Order by A. N., Alaina Kupec, A. T.. Responses due by 11/14/2016 Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(PFEIFFER, SONYA) Modified on 12/16/2016 to reflect filed in error and terminated motion per 12/16/2016 TEXT Order. (Daniel, J) (Entered: 10/18/2016)
71 ***FILED IN ERROR*** MOTION to Adopt (204 in 1:16−cv−00425−TDS−JEP, 204 in 1:16−cv−00425−TDS−JEP) MOTION to Quash and Modify Defendants Subpoenas Duces Tecum MOTION for Protective Order by Stephanie Paige Dula. Responses due by 11/17/2016 Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(SUSSMAN, JACOB) Modified on 12/16/2016 to reflect filed in error and terminated motion per 12/16/2016 TEXT Order. (Daniel, J) (Entered: 10/24/2016)
72 Transcript of the Telephonic Status Conference held on 11/14/2016, before Judge Joi E. Peake. Court Reporter Briana L. Nesbit, Telephone number 336−734−2514. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Case: 1:16-cv-845 document<docnum> filed <datefiled> 15 of 16

12/16/2016

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 12/9/2016. Redacted Transcript Deadline set for 12/19/2016. Release of Transcript Restriction set for 2/16/2017. Associated Cases: 1:16−cv−00425−TDS−JEP, 1:16−cv−00236−TDS−JEP, 1:16−cv−00844−TDS−JEP, 1:16−cv−00845−TDS−JEP(Nesbit, Briana) (Entered: 11/15/2016)
TEXT ORDER by JUDGE THOMAS D. SCHROEDER on 12/16/2016. On July 25, 2016, the Court consolidated cases 1:16CV236, 1:16CV425, 1:16CV844 and 1:16CV845 for discovery purposes only. Subsequent to this consolidation, Plaintiffs voluntarily dismissed case 1:16CV844 on July 28, 2016 (Doc. 33) and 1:16CV845 on August 31, 2016 (Doc. 63). However, parties continue to file documents in these closed cases. Therefore, parties are directed that any future filings must be filed in the appropriate case to which it relates and parties should refrain from electing the option to "spread" the docket entry to any unrelated or closed cases. IT IS SO ORDERED. Associated Cases: 1:16cv236, 1:16cv425, 1:16cv844, 1:16cv845 (Engle, Anita) (Entered: 12/16/2016)

Case: 1:16-cv-845 document<docnum> filed <datefiled> 16 of 16

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

PHIL BERGER, in his official capacity as )

President pro tempore of the North

)

Carolina Senate, and TIM MOORE, in his )

official capacity as Speaker of the North )

Carolina House of Representatives,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

JUSTICE; LORETTA E. LYNCH, in her )

official capacity as Attorney General of the )

United States; and VANITA GUPTA, in )

her official capacity as Principal Deputy )

Assistant Attorney General,

)

)

Defendants.

)

NO. 5:16-CV-240-FL

____________________________________

NORTH CAROLINIANS FOR

)

PRIVACY, an unincorporated nonprofit )

association,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

JUSTICE; LORETTA E. LYNCH, in her )

official capacity as United States Attorney )

General; UNITED STATES

)

DEPARTMENT OF EDUCATION; and )

JOHN B. KING, JR., in his official

)

capacity as United States Secretary of

)

Education,

)

)

Defendants.

)

NO. 5:16-CV-245-FL

ORDER

These cases challenging the federal government’s response to North Carolina’s restriction on use of bathrooms, shower rooms, and changing facilities come now before the court on motions to consolidate respectively filed by plaintiff Phil Berger, President pro tempore of the North Carolina Senate, and plaintiff Tim Moore, Speaker of the North Carolina House of Representatives, in case number 5:16-CV-240-FL (“Berger”) (DE 7); and plaintiff North Carolinians for Privacy (“NCFP”) in case number 5:16-CV-245-FL (“NCFP”) (DE 12), pursuant to Federal Rule of Civil Procedure 42(a). The goal of these motions is to create one omnibus case including another case also challenging purported federal overreach in the regulation of those same facilities, McCrory v. United States, 5:16-CV-238-BO (E.D.N.C. 2016) (“McCrory”). On June 21, 2016, a telephonic hearing and Rule 16 status conference was held in Berger and NCFP; counsel in McCrory also attended.
BACKGROUND A. The Ordinance and Legislative Response
On February 22, 2016, the Charlotte, North Carolina, City Council voted to approve “An Ordinance Amending Chapter 2 of the Charlotte City Code Entitled ‘Administration’, Chapter 12 Entitled ‘Human Relations’, and Chapter 22 Entitled ‘Vehicles for Hire,’” unofficially designated by the city as the “Non-Discrimination Ordinance” (the “Ordinance”). See http://charmeck.org/city/ charlotte/CityClerk/Documents/NDOrdinance.pdf (last visited June 29, 2016). As relevant here, the Ordinance added to the city’s then-existing prohibition on discrimination protections for persons discriminated against on the basis of “gender identity [or] gender expression.” Id. § 1. It also repealed certain pre-existing provisions of the Charlotte City Code allowing businesses to restrict on the basis of biological sex access to “[r]estrooms, shower rooms, bathhouses and similar facilities
2

which are in their nature distinctly private.” Id. § 3. Thus, by its terms, the Ordinance allowed transgender persons, that is, those who identify with a sex different from their biological sex assigned at birth, to use the restroom or shower facility that corresponds with their gender identity. The Ordinance was scheduled to go into effect April 1, 2016.
Almost immediately, the Ordinance drew criticism from North Carolina Governor Pat McCrory, members of the state’s legislature, and some members of the public. Opponents argued that the Ordinance swept far more broadly than the Charlotte City Council had intended and potentially could have negative consequences. On February 23, 2016, Speaker Moore, one of the Ordinance’s opponents, vowed “to correct this radical course.” Steve Harrison & Jim Morrill, After LGBT Vote, NC House Speaker Says Lawmakers Will ‘Correct This Radical Course’, Charlotte Observer, Feb. 23, 2016, available at http:// www.charlotteobserver.com/news/ politics-government/article61932507.html (last visited June 29, 2016). On March 22, 2016, Speaker Moore and North Carolina Lieutenant Governor Dan Forest, President of the North Carolina Senate, called both houses of the legislature into special session to address the Ordinance.
Following a one-day special session, held March 23, 2016, the state legislature passed Session Law 2016-3, titled “An Act to Provide for Single-Sex Multiple Occupancy Bathroom and Changing Facilities in Schools and Public Agencies and to Create Statewide Consistency in Regulation of Employment and Public Accommodations,” commonly known either as the “Public Facilities Privacy and Security Act,” or “HB2” (the “Act”). See H.B. 2, 2016 Sess. L. 3 (N.C. 2016). Section 1 of the Act, which is the most relevant section for purposes of these lawsuits, targets directly Charlotte’s Ordinance. It requires “local boards of education” and “public accommodations” to adhere to a single sex, multiple occupancy bathroom policy, with “sex” defined
3

as “biological” or “physical” sex as “stated on a person’s birth certificate.” See id. §§ 1.2 & 1.3; see also id. § 1.1. Other provisions of the Act preempt local government control over the minimum wage, id. § 2.1; the power of local government to condition contracts with private parties on certain conditions or employment practices inconsistent with state law, id. §§ 2.2 & 2.3; and local discrimination ordinances. See id. §§ 3.1 & 3.3. Governor McCrory signed the Act into law on the March 23, 2016, session date.1 B. Subsequent Litigation
The Act has been met both with ire and praise. On March 28, 2016, one of the groups expressing displeasure, the American Civil Liberties Union of North Carolina, filed suit in the United States District Court for the Middle District of North Carolina. See Carcaño v. McCrory, 1:16-CV-236-TDS-JEP (M.D.N.C. 2016) (“Carcaño”). Carcaño was brought, among others, on behalf of Joaquín Carcaño and Payton McGarry, persons born biologically female but who live their lives as males. As alleged, Carcaño and McGarry were diagnosed with gender dysphoria and have received hormone therapy to assist in the treatment of their medical condition.
According to the complaint, aside from hormone therapy, treatment for gender dysphoria requires use of single-sex restroom and locker room facilities consistent with one’s gender identity. Carcaño and McGarry allege that they will be damaged as a result of the Act’s biological sex restriction on state-operated bathroom and shower facilities. See Carcaño, 1:16-CV-236-TDS-JEP (DE 1, ¶¶28–33; 41; 45–53; 64–66; 72–82).
1 Thereafter, on April 12, 2016, Governor McCrory signed Executive Order 93, implementing the substantive provisions of the Act. See Executive Order No. 93: To Protect Privacy and Equality (Apr. 12, 2016), available at https:// ncgovernor.s3.amazonaws.com/s3fs-public/documents/files/McCrory%20EO%2093_0.pdf (last visited June 29, 2016).
4

The Carcaño plaintiffs assert a variety of claims against Governor McCrory; Roy Cooper, the North Carolina Attorney General; the University of North Carolina; the Board of Governors of the University of North Carolina; and Louis Bissette, Jr., Chairman of the Board of Governors. As relevant here, the Carcaño plaintiffs allege that § 1 of the Act violates on its face the Fourteenth Amendment’s Equal Protection Clause. In particular, they allege that § 1 classifies people on the basis of their sex, gender identity, and transgender status, and treats transgender people different than similarly situated people who are not transgender.
In addition, Carcaño, an employee of the University of North Carolina at Chapel Hill, and McGarry, a student at the University of North Carolina at Greensboro, allege that § 1 of Act violates on its face their rights under Title IX of the Educational Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681 et seq. In particular, they allege that by limiting bathroom, changing facility, and shower facility access along the lines of biological sex, defendants have denied them benefits “on the basis of sex” 20 U.S.C. § 1681(a). The Carcaño plaintiffs also raise a number of Constitutional claims not relevant here.2 C. Determination Letters
Notwithstanding Carcaño, the state proceeded to implement the Act. Those efforts were met with hostility from the United States. For example, on April 5, 2016, the University of North Carolina, through its president, Margaret Spellings, publically indicated that the university system would comply with the Act. In reaction to that guidance, the United States Department of Education
2 For example, they allege that § 1 of the Act violates the Fourteenth Amendment’s Equal Protection Clause because it discriminates against homosexuals on the basis of sexual orientation; §§ 2 and 3 of the Act violate the Fourteenth Amendment’s Equal Protection Clause by preempting local non-discrimination ordinances; and that the Act as a whole violates the substantive aspect of the Fourteenth Amendment’s Due Process Clause by violating their fundamental rights to privacy and to refuse unwanted medical treatment.
5

(“USDOE”) requested information for the purpose of determining whether the university system, a recipient of federal funds, was in compliance with Title IX and the Violence Against Women Act (the “VAWA”), 42 U.S.C. § 13701 through § 14040. Previously, the USDOE had interpreted Title IX and its associated regulations with the purpose of including transgender individuals within the statute’s reach, at least with respect to bathroom access. See generally G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., __ F.3d__, 2016 WL 1567467 (4th Cir. 2016).
On May 4, 2016, the United States Department of Justice (“USDOJ”) issued a series of three “determination letters” respectively to Governor McCrory; Secretary of the North Carolina Department of Public Safety, Frank Perry; and President Spellings. All three letters are to the same effect: § 1 of the Act violates federal law. The letter directed to Governor McCrory concludes that § 1 of the Act violates Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq, on its face. The letter to Secretary Perry likewise concludes that § 1 of the Act facially violates both Title VII and the VAWA. Finally, the letter directed toward President Spellings likewise concludes that § 1 of the Act facially violates both Title IX and the VAWA. The United States gave each recipient up to and including May 9, 2016, to “remedy” their respective violations of federal law or risk losing federal funding. D. Initiation of Litigation Following Carcaño
Coming on the heels of Carcaño are three related federal lawsuits filed May 9, 2016. One was filed in the Middle District and two were filed in this district. A fourth related case was filed in this district on the following day.
6

1. McCrory At 8:31 a.m. on May 9, 2016, Governor McCrory and Secretary Perry filed McCrory in this district, assigned to another judge. See 5:16-CV-238-BO (DE 1). Named as defendants are the United States of America; the USDOJ; Loretta Lynch, in her official capacity as United States Attorney General; and Vanita Gupta, in her official capacity as Principal Deputy Assistant Attorney General. The McCrory plaintiffs seek a declaration that the state is “in compliance with Title VII” under the text of that statute. Id. (DE 1 at 8). In addition, they seek a declaration that the state is “in compliance with [the] VAWA,” which they assume “specifically includes gender identity as a protected class.” Id. (DE 1 at 8–9). 2. United States At 3:16 p.m. on May 9, 2016, the United States of America filed suit in the Middle District. See United States v. North Carolina, 1:16-CV-425-TDS-JEP (M.D.N.C. 2016) (the “United States” case). Defendants in that case are the State of North Carolina; Governor McCrory, the North Carolina Department of Public Safety; the University of North Carolina; and its Board of Governors. The United States seeks a declaration that § 1 of the Act violates Title VII, Title IX, and the VAWA. 3. Berger Also on May 9, 2006, eight minutes after United States was filed in the Middle District, and about seven hours after McCrory was filed here, Senator Berger and Speaker Moore filed Berger. Separate and apart from McCrory, Berger develops additional theories challenging the validity of the USDOJ’s interpretative position. For example, as Berger relates to Title VII, the Berger plaintiffs allege that § 1 of the Act does not discriminate on the basis of gender identity and that the term “sex” does not include gender identity. Second, they allege that the USDOJ’s interpretation
7

of Title VII, even if valid in light of the statute’s text, runs afoul of Section Five of the Fourteenth Amendment, because the remedy it provides is not “congruent and proportional” relative to the discrimination it seeks to prevent. Third, the Berger plaintiffs allege that the USDOJ’s interpretation of Title VII, even if valid in light of the statute’s text, violates a number of principles related to federalism and the separation of powers, including the Commerce Clause, Spending Clause, Presentment Clause, and the Tenth Amendment. Finally, they allege that, even if § 1 of the Act violates Title VII in some instances, it cannot be facially invalid where it has at least one possible, permissible application.
Berger also raises concerns in response to the USDOJ’s interpretation of Title IX and the VAWA, also not at issue in McCrory. In the context of Title IX, the Berger plaintiffs allege that § 1 of the Act does not discriminate on the basis of gender identity and that the term “sex” does not include gender identity. Second, they allege that the USDOJ’s interpretation of Title IX, even if valid in light of the statute’s text, was promulgated in violation of the notice-and-comment rule making procedure required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., because, notwithstanding the USDOJ’s position to the contrary, the rule announced was “substantive” or “legislative,” as opposed to merely “interpretative.” 5 U.S.C. § 553. Third, the Berger plaintiffs interpose a host of Constitutional claims targeting the USDOJ’s interpretation of Title IX, including that the USDOJ’s interpretation of that statute and its regulations violates the federalism principles embodied in the Tenth Amendment; violates the Spending Clause; and requires the state to violate both its citizens’ fundamental right to bodily privacy and parents’ fundamental liberty interest in directing the education and upbringing of their children, at least with respect to matters of sexuality. Finally, at least with respect to Title IX, they allege that, under the USDOJ’s
8

interpretation of Title IX, § 1 of the Act still has some permissible applications and, therefore, is not facially invalid.
In the context of the VAWA, the Berger plaintiffs similarly allege that § 1 of the Act does not violate the VAWA because it does not discriminate on the basis of gender identity, but rather on the basis of biological sex, a consideration, they submit, that clearly is permissible under the VAWA, and, in all events, that the term “sex” does not include gender identity. Second, they also allege that the USDOJ’s interpretation of the VAWA, even if valid in light of the statute’s text, is inconsistent with the APA because it is arbitrary and capricious, where the USDOJ implemented it without considering fully the consequences of that interpretation, and otherwise not in accordance with the law, where that interpretation violates the USDOJ’s own regulations, the “Prison Rape Elimination Act National Standards, ” 15 C.F.R. § 115.5 et seq. Third, the Berger plaintiffs allege that the USDOJ’s interpretation of the VAWA violates Tenth Amendment’s federalism principles, violates the Spending Clause, and requires the state to violate the Eighth Amendment rights of its inmates. Finally, they allege that § 1 of the Act, even if it violates the VAWA in some instances, does not violate the VAWA on its face, because it does not violate the VAWA in all instances.
4. NCFP One day later, on May 10, 2016, NCFP filed NCFP in this district. Like Berger, NCFP was assigned to this judge. Unlike McCory, and like Berger in part, NCFP centers on Title IX. Also like Berger, NCFP raises other, different issues for decision also not embraced by McCrory. NCFP seeks a declaration that the USDOE’s interpretation of Title IX, as adopted by the USDOJ, is inconsistent with the text of the statute and violates the APA, a federal statute, and the Constitution. First, NCFP alleges that the United States’s interpretation of Title IX runs contrary
9

to the text of the relevant statute and regulations, because the term “sex” is unambiguous and may not be interpreted to include gender identity.
Second, NCFP alleges that, even if valid in light of the statute’s text, the United States’s interpretation of Title IX violates the APA where it was promulgated without observing the APA’s notice-and-comment rule making procedures. Likewise, it alleges that the United States’s interpretation of Title IX violates the APA where it is arbitrary and capricious because the USDOE, and by proxy the USDOJ, did not engage in reasoned decision making when adopting its interpretation; failed to consider potential negative consequences of mixing the biological sexes in bathrooms, shower facilities, and the like; and failed to explain appropriately its actions.
Third, NCFP alleges that the United States’s interpretation of Title IX, even if valid in light of the statute’s text, violates a federal statute and certain Constitutional provisions. In particular, NCFP alleges that the United States’s interpretation of Title IX violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., because it substantially burdens the organization’s members’ sincerely held religious beliefs regarding modesty and nudity and does not further a compelling government interest. Likewise, NCFP alleges that the United States’s interpretation of Title IX violates the organization’s members’ Fourteenth Amendment rights, including the fundamental right to privacy and the fundamental liberty interest in directing the education and upbringing of one’s child; violates the First Amendment’s Free Exercise Clause; and violates the Spending Clause.
In addition, NCFP seeks a declaration that § 1 of the Act does not violate Title IX, that § 1 of the Act does not violate the VAWA, and, in all events, the USDOJ’s interpretation of the VAWA
10

exceeds the VAWA’s regulatory mandate. NCFP also requests an injunction, prohibiting the United States from stripping the state’s federal funding pending disposition of its case. E. Subsequent Litigation Developments
1. Carcaño Carcaño has progressed substantially and now presents issues concerning USDOJ’s interpretation of Title IX as it relates to that statute’s text, the procedure employed by the USDOJ in interpreting the statute, and the validity of the USDOJ’s interpretation in light of other substantive provisions of law. On May 25, 2016, the Berger plaintiffs filed a motion to intervene in Carcaño. 1:16-CV-236-TDS-JEP (DE 33). Their motion to intervene was granted June 6, 2016. Id. (DE 44). On June 9, 2016, the Berger plaintiffs answered the complaint and interposed counterclaims against the Carcaño plaintiffs. Id. (DE 54). As relevant here, the Berger plaintiffs now assert in Carcaño a claim against the Carcaño plaintiffs for a declaration that § 1 of the Act does not violate on its face the Fourteenth Amendment’s Equal Protection Clause. In addition, they request a declaration that § 1 of the Act does not violate Title IX, or, in the alternative, that the Carcaño plaintiffs’ interpretation of Title IX violates the federal Constitution. In the meantime, the Carcaño parties, including the Berger plaintiffs and Governor McCrory, nearly have completed briefing on a motion for preliminary injunction. Id. (DE 21; DE 22; DE 27; DE 55; DE 61; DE 73). That motion seeks to enjoin Governor McCrory, as well as other defendants, from enforcing § 1 of the Act.
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2. United States United States presents for decision nearly the full complement of issues presented in this district in McCrory, Berger, and NCFP. The Berger plaintiffs moved to intervene in United States on May 17, 2016. The Berger plaintiffs declared in United States in furtherance of their motion to intervene similarity of issues raised here: “[O]n the same day the [USDOJ] sued in this District, the Proposed Intervenors filed their own declaratory judgment action in the Eastern District of North Carolina, raising multiple questions of law and fact nearly identical to questions raised by the Department – questions which, moreover, are raised in the pleading accompanying this intervention.” United States, 1:16-CV-425-TDS-JEP (DE 9 at 6). Likewise, on June 28, 2016, NCFP moved to intervene in United States. Id. (DE 58). In support of its motion, NCFP attests to the similarity between NCFP and United States: “NCFP has a pending action in the Eastern District of North Carolina involving some of the same legal issues at stake in this case.” Id. (DE 59 at 6). That case also includes challenges by Governor McCrory, through the vehicle of affirmative defenses, to the USDOJ’s interpretation of Title VII, Title IX, and the VAWA in light of the text of those statutes, the procedures employed by the USDOJ in interpreting those statutes, and other substantive provisions of law. Id. (DE 32). Moreover, Governor McCrory asserts two counterclaims that are identical to his principal claims in McCrory. Id. (DE 32). United States has progressed, too, on claim for injunctive relief. On June 10, 2016, the United States parties filed a joint motion for injunctive relief, raising the time-sensitive issue of whether or not certain federal funds made available to defendants under the VAWA should be suspended, a concern implicit also in Berger and NCFP. By order entered June 23, 2016, the court granted the parties’ joint motion, holding that “while entertaining serious concerns about the
12

positions taken by the parties and the court’s authority to enter an injunction under the circumstances of this case, the court finds that, in the absence of clear authority to the contrary and in light of the substantial harm that suspension of funding in question would inflict on wholly innocent third parties, the court will grant the motion preliminarily.” Id. (DE 53 at 1).
3. Related Eastern District of North Carolina Cases On May 17, 2016, the McCrory plaintiffs filed an unopposed motion to transfer their case to the Middle District. There, they pointed out that United States had been, for all intents and purposes, filed contemporaneously with McCrory. In addition, they pointed out that Carcaño, filed nearly two months earlier, raises similar issues and has been assigned to the same United States District Judge. The McCrory plaintiffs argued that a transfer to the Middle District would “greatly enhance efficiency for the parties and the public while avoiding piecemeal litigation and reducing inconvenience to the witnesses.” McCrory, 5:16-CV-238-BO (DE 10 at 6). Thereafter, on May 23, 2016, the instant motions to consolidate were filed in Berger and NCFP. Berger, 5:16-CV-240-FL (DE 7); NCFP, 5:16-CV-245-FL (DE 12). The Berger plaintiffs argue that decision on their motion seeking to consolidate should come first, before any decision on the McCrory plaintiffs’ consent motion to transfer. “[B]ecause McCrory and this case are obviously related, the proper course is first to consolidate the two cases before making any decision about whether or not to transfer them to the Middle District.” Berger, 5:16-CV-240-FL (DE 8 at 6). Grabbing hold of the “interested party” role designation in the court’s electronic case filing system (“CM/ECF”), without leave or the making of any motion to intervene, the Berger plaintiffs catapulted themselves in the McCrory case. There, they filed a motion to consolidate identical to
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the one they previously had filed in the Berger case. Id. (DE 7); McCrory, 5:16-CV-238-BO (DE 11).
The McCrory plaintiffs followed suit, adopting CM/ECF’s “interested party” label and, also without leave or the making of any motion to intervene, filed a response in Berger in support of the Berger plaintiffs’ motion to consolidate Berger with McCrory, on the condition however that any consolidation not “in any way impede[] or interfere[] with the transfer of [McCrory] to the Middle District.” Berger, 5:16-CV-240-FL (DE 13 at 2). In the Berger case, defendants’ response to the motion to consolidate was not due until on or before June 16, 2016.
On May 24, 2016, one day after the Berger plaintiffs filed their motion before this court, NCFP filed in NCFP its motion to consolidate NCFP with McCrory. NCFP, 5:16-CV-245-FL (DE 12). NCFP, like the Berger plaintiffs, put itself on the docket in the McCrory case where on May 24, 2016, as an “interested party” in CM/ECF, it filed an identical motion to consolidate NCFP and McCrory. McCrory, 5:16-CV-238-BO (DE 22).
Into the muddied case waters the Berger defendants had not yet waded. As noted, their response to the motion to consolidate in the Berger case before the undersigned was not due to be made until on or before June 16, 2016.
In the meantime, on May 23, 2016, the judge assigned to McCrory announced he would decide the “interested party” Berger plaintiffs’ motion to consolidate before addressing the McCrory plaintiffs’ consent motion to transfer. Id. (May 23, 2016, text order). On May 26, 2016, the judge assigned to McCrory stated that the final decision on consolidation rests with the judge to whom the case is assigned, announcing that consolidation of McCrory and Berger “will be allowed if permitted by the judge to whom [Berger] is currently assigned.” Id. (DE 32 at 1–2). On June 7,
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2016, as the Berger plaintiffs’ instant motion to consolidate was ripening before the undersigned,
the judge assigned to McCrory denied the McCrory plaintiff’s consent motion to transfer. McCrory,
5:16-CV-238-BO (DE 34).
On June 13, 2016, three days before the Berger defendants’ response to the Berger plaintiff’s
instant motion to consolidate was due to be filed in the above-captioned case, the judge assigned to
McCrory again suggested, by separate order, that Berger and McCrory would be consolidated.
Id. (DE 36). On June 15, 2016, two days before the NCFP defendants’ response was due in NCFP,
the undersigned set these cases before her for hearing on the motions to consolidate and for Rule 16
status conference for June 21, 2016. On June 20, 2016, one day before that hearing and conference,
the judge assigned to McCrory suggested in separate order that NCFP also would be consolidated
with McCory.3 Id. (DE 43).
3 The undersigned has waited for the separate response deadlines to expire before ruling on the instant motions to consolidate in Berger and NCFP. It appears, however, that during that time confusion has developed in the clerk’s office and among the litigants as to the status of these cases. For example, the Berger plaintiffs having entered McCory and filed there their motion to consolidate pending before the undersigned triggered discourse with the McCory plaintiffs, who responded separately on May 25, 2016. The next day, a “court only” flag prematurely was triggered by the McCrory case manager stating “Replies due by 6/13/16,” seemingly depriving the Berger defendants of their opportunity timely to respond in this case, which period did not elapse until June 16, 2016. On June 14, 2016, after suggested ruling on the motion in McCrory the day before, defendants in NCFP filed response in opposition to consolidation, wherein they misapprehended significance of suggested ruling in McCrory. There can be no consolidation of two cases assigned different judges until the judge assigned to the case to be consolidated relinquishes her authority over it. See Vorel v. Johns, No. 5:10-CT-3005-FL, 2010 WL 4735829, at *1 (E.D.N.C. Nov. 15, 2010). As the judges of this court have noted, that much should be plain. The consolidation of cases assigned to multiple judges necessarily entails the reassignment of the case to be consolidated from one judge to the other. Without orderly rules and procedures to govern consolidation, and, by proxy, reassignment, a party’s indiscriminately filed motion to consolidate might invite dereliction of the carefully constructed system used to distribute cases between the judges of a district. To make it even plainer that final decision on motions in cases assigned to me rests with me, to promote efficiencies sought after by all parties, where the nature of this litigation has been made more complex in no small part by the parties’ own strategic litigation decisions, and given the practical difficulties arising for the clerk’s office in effective case management, the court set hearing and Rule 16 status conference in these cases June 15, 2016, by telephone for June 21, 2016.
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COURT’S DISCUSSION A. Motions to Consolidate Berger and NCFP with McCrory
The court denies the instant motions to consolidate Berger and NCFP with McCrory. Granting those motions would impede the efficient administration of justice. There exists a more direct path to final resolution of the central question presented in all five actions, the validity of the Act under federal Constitutional and statutory law, which question encompasses all of the other issues raised by the McCrory plaintiffs, the Berger plaintiffs, and NCFP.
“If actions before the court involve a common question of law or fact, the court may . . . join for hearing or trial any or all matters at issue in the actions; . . . consolidate the actions; or . . . issue any other orders to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). In ruling on a motion to consolidate the “critical question” is whether the case presents “specific risks of prejudice and possible confusion” and, if so, the magnitude of those risks relative to the “risk of inconsistent adjudications on common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives.” Arnold v. E. Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982), reh’g granted and rev’d on other grounds, 712 F.2d 899 (4th Cir. 1983) (en banc).
In the usual case, consolidation would be warranted. The risk of inconsistent adjudication is high and the relative expense of multiple proceedings, as compared to a single proceeding, is plain. As to the risk of inconsistent adjudication, the similar substantive and procedural issues raised by McCrory, Berger, and NCFP are presented now through the vehicle of five different cases, including Carcaño and United States, assigned to three different district judges over the span of two
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districts. The very fact that these cases are presented to isolated decision makers raises beyond the speculative level the fear of inconsistent adjudications. That threat is even more real in light of the fact that each case presents a collection of substantively identical claims along side different, but related claims.
Notwithstanding the above, the court declines the parties’ invitation to consolidate either Berger or NCFP with McCrory on the unique circumstances presented. Considering only the three cases pending in this district, it is abundantly clear that the true center of gravity around which this dispute lies is presented to the undersigned, rendering consolidation with the less rigorous McCrory inappropriate.
Berger and NCFP present a more robust challenge to the United States’s interpretative position. The Berger plaintiffs and NCFP attack the USDOJ’s interpretative guidance through three avenues. First, they each raises a textual argument, alleging that the USDOJ’s interpretation is impermissible in light of Title VII, Title IX, and the VAWA’s text. Second, they each raises procedural issues, alleging that, even if the USDOJ’s interpretation of the relevant statutes is permissible under the text of those statutes, that said interpretation was promulgated in violation of the APA. Finally, they each raises a substantive, independent legal challenge to the USDOJ’s interpretative guidance. In particular, the Berger plaintiffs and NCFP all allege that the USDOJ’s interpretation of Title VII, Title IX, or the VAWA violates numerous provisions of the Constitution. The McCrory plaintiffs, by contrast, limit their challenge to the text of the relevant statute. For example, they request a declaration that the state is in compliance with the VAWA, assuming that the VAWA “specifically includes gender identity as a protected class.” McCrory, 5:16-CV-238-BO (DE 1 at 8–9). Thus, consolidation with the less rigorous McCrory is inappropriate.
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Consolidation of Berger and NCFP with McCrory also is inappropriate where it would defy the mandate of Federal Rule of Civil Procedure 1. The court must “construe[], administer[], and employ[] [the Federal Rules of Civil Procedure] . . . to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Consolidation of the cases now pending in this district falters on that goal, where it provides only temporary relief to a long-term problem. Even if the court were to consolidate these cases, there still is a risk of inconsistent and expensive parallel proceedings where similar actions remain pending in the Middle District and no party seems ready to accept a stay in any case. In fact, the Berger plaintiffs recently have confirmed that, in the absence of some kind of single-district solution, they would continue to press their position in both the Eastern and Middle Districts. See United States, 1:16-CV-425-TDS-JEP (DE 50 at 1–3). A transfer best accomplishes Rule 1’s goal. B. Court’s Sua Sponte Transfer of Berger and NCFP
Pursuant to 28 U.S.C. § 1404(a), a district court may transfer a case to any other district “where it might have been brought” if such transfer is determined in the court’s discretion to be “for the convenience of the parties and witnesses [and] in the interest of justice.” 28 U.S.C. § 1404(a). The district court may consider the possibility of transfer sua sponte. Feller v. Brock, 802 F.2d 722, 729 n.7 (4th Cir. 1986).
In exercising its discretion to transfer a case, the court is guided by a number of factors, including consideration of practical solutions of administrative efficiency that might make the proceedings easy, expeditious, and inexpensive. See Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527 (M.D.N.C. 1996). In addition, where similar law suits have been filed in multiple federal forums, the first-filed suit usually should have priority, “absent the showing of balance of
18

convenience in favor of the second action.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 594–95 (4th Cir. 2004); Ellicot Mach. Corp. v. Modern Welding Co., 502 F.2d 178, 180 (4th Cir. 1974). To determine whether a case is the “first filed” the court looks to 1) the chronology of the filings, 2) the similarity of the parties, and 3) the similarity of the issues at stake. Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357, 360 (W.D.N.C. 2003); see also Allied-Gen. Nuclear Servs. v. Commonwealth Edison Co., 675 F.2d 610, 611 n.1 (4th Cir. 1982); Carbide & Carbon Chems. Corp. v. U.S. Indus. Chems., 140 F.2d 47, 49 (4th Cir. 1944).
As a threshold matter, both Berger and NCFP could have been brought in the Middle District. Pursuant to 28 U.S.C. § 1391(e), where a plaintiff sues an agency or officer of the United States, venue may be laid in any judicial district where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(e). A significant portion of the events giving rise to the claims at issue occurred in the Middle District. If the United States were to pull federal funding from schools, universities, and the prison system, among other things, the effect of that action would be felt wide, including in the Middle District. In fact, the court in that district already has addressed this issue, preliminarily, for the benefit of the State of North Carolina.
Here, the “interest of justice” favors a transfer of the Berger and NCFP cases to the Middle District. Both the “first-filed” rule and considerations of administrative efficiency counsel in favor of that result. First, Carcaño was the first-filed case and is owed a degree of deference. That case challenges § 1 of the Act under Title IX. The Title IX claim raised by the Carcaño plaintiffs is the mirror image of the Title IX claims raised by the Berger plaintiffs and NCFP. They raise common questions concerning the validity of the Act under a federal statute. In many ways, the claims presented by the Carcaño plaintiffs on the one hand, and the Berger plaintiffs and NCFP, on the
19

other, are two sides of the same coin; the Constitutional and statutory claims asserted by the Berger plaintiffs and NCFP with respect to Title IX respond directly to and could be asserted in defense to the Carcaño plaintiffs’ Title IX claim.
Although the Berger plaintiffs also raise Title VII and VAWA claims, the conceptual difference between a fully and thoroughly litigated Title IX claim, as compared to a Title VII and VAWA claim is minimal because the relevant language in each statute is substantively identical; each claim likely will turn on the same or similar analysis. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (courts look to Title VII to interpret Title IX); Braden v. Piggly Wiggly, 4 F. Supp. 2d 1357 1361 (M.D. Ala. 1998) (“The legislative history also reveals that Congress intended the language of the VAWA to mirror that of Title VII.”). Thus, the structural similarity between the three cases is a persuasive basis upon which to ground a transfer.
However, the court recognizes that Carcaño is not a perfect analogue of either Berger or NCFP. In particular, Carcaño challenges the Constitutionality of the Act directly, while Berger and NCFP challenge only the USDOJ’s interpretation of several federal statutes. Even though these cases are not perfectly analogous, the totality of the circumstances suggests they should be tried together, or at least on a unified schedule before one judge. As an initial matter, § 1404 does not require a one-to-one correspondence of issues. In addition, although the issues raised in both cases certainly are unique, the court views them in their larger context. All of the issues presented between Berger, NCFP, and Carcaño bear on a common question, whether the Act survives in the face of federal law. Thus, the court considers Carcaño to be the first filed and will defer to it.
In any case, the joint administration of Berger and NCFP alongside Carcaño and United States will accrue significant administrative and financial benefits to all interested parties. As to
20

administrative benefits, the litigants will receive substantial benefit of having one judge control all four cases, and with them all substantive issues related to the validity of the Act under federal Constitutional and statutory law. That will allow a single decision maker to render timely decisions and coordinate deadlines between the parties. Moreover, the public will experience a significant benefit from the joint administration of these cases. The undersigned makes no forecast on the merits of any case now pending. However, different, potentially inconsistent, decisions by different judges does no service. Such a convoluted result would leave the public in disarray and uncertain about their legal rights.
That these cases would benefit from a transfer plainly is evident. At hearing, no party expressed opposition to the court’s transfer related inquiries. Moreover, the benefits of a transfer are apparent from the parties’ positions of record. For one example, on June 23, 2016, the Berger plaintiffs filed in United States a supplemental brief indicating that they would “continue participating in [the Eastern and Middle District] proceedings unless and until they are consolidated in a single district.” United States, 1:16-CV-425-TDS-JEP (DE 50 at 1). Indeed, the Berger plaintiffs provided that, if these proceedings are to remain fragmented, they have “no choice but to protect their interests in both courts.” Id. (DE 50 at 3). For another example, NCFP similarly has evidenced its intent to proceed in both the Eastern and Middle Districts absent consolidation in a single district. Id. (DE 58). In light of the parties’ clear intent to pursue and protect their interests wherever necessary, the court concurs with the Berger plaintiffs, “judicial efficiency would be served by having [all actions in the Eastern and Middle District concerning the Act] consolidated and tried before the same tribunal.” Id. (DE 50 at 2).
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Berger and NCFP are transferred to the Middle District for all the reasons outlined above. A transfer will give both sides the opportunity to attack or defend the Act with a full arsenal of legal theories. Resolution of this dispute needs such an arrangement. Civil Rule 1 compels it. The public interest requires it.
CONCLUSION Based on the foregoing, the court DENIES the Berger plaintiffs’ motion to consolidate case number 5:16-CV-240-FL with case number 5:16-CV-238-BO. Berger, 5:16-CV-240-FL (DE 7). Likewise, the court DENIES NCFP’s motion to consolidate case number 5:16-CV-245-FL with case number 5:16-CV-238-BO. NCFP, 5:16-CV-245-FL (DE 12). On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16-CV-240-FL and case number 5:16-CV-245-FL to the Middle District. The clerk of court is DIRECTED immediately to transmit a certified copy of this order and associated case files to John S. Brubaker, Clerk of Court, United States District Court for the Middle District of North Carolina, and thereafter close these cases. SO ORDERED, this the 29th day of June, 2016.
_____________________________ LOUISE W. FLANAGAN United States District Judge
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 Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 1 of 7
CLOSED
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:16−cv−00245−FL

North Carolinians for Privacy v. United States Department of Justice, et al Assigned to: District Judge Louise Wood Flanagan related Cases: 5:16−cv−00238−BO
5:16−cv−00240−FL Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 05/10/2016 Date Terminated: 06/29/2016 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

North Carolinians for Privacy an unincorporated nonprofit association

represented by David A. Cortman Alliance Defending Freedom 1000 Hurricane Shoals Road NE, Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@ADFlegal.org ATTORNEY TO BE NOTICED

James A. Campbell Alliance Defending Freedom 15100 N. 90th St. Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jcampbell@adflegal.org ATTORNEY TO BE NOTICED

Jeremy D. Tedesco Alliance Defending Freedom 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jtedesco@adflegal.org ATTORNEY TO BE NOTICED

John Matthew Sharp Alliance Defending Freedom 1000 Hurricane Shoals Road NE, Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: msharp@adflegal.org ATTORNEY TO BE NOTICED

Jonathan Caleb Dalton Alliance Defending Freedom 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: cdalton@adflegal.org ATTORNEY TO BE NOTICED

Joseph E. La Rue Alliance Defending Freedom

Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 2 of 7
15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jlarue@adflegal.org ATTORNEY TO BE NOTICED
Kristen K. Waggoner Alliance Defending Freedom 15100 N. 90th St. Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: kwaggoner@adflegal.org ATTORNEY TO BE NOTICED
Deborah J. Dewart Deborah J. Dewart, Attorney at Law 620 E. Sabiston Dr. Swansboro, NC 28584−9674 910−326−4554 Fax: 877−326−4585 Email: debcpalaw@earthlink.net ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice
Defendant Loretta E. Lynch in her official capacity as United States Attorney General
Defendant United States Department of Education

represented by Michael James 310 New Bern Ave. Suite 800 Raleigh, NC 27601 919−856−4530 Email: Mike.James@usdoj.gov TERMINATED: 07/18/2016 LEAD ATTORNEY
James O. Bickford United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 202−305−7632 Fax: 202−616−8470 Email: James.Bickford@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael James (See above for address) TERMINATED: 07/18/2016 LEAD ATTORNEY
James O. Bickford (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James (See above for address) TERMINATED: 07/18/2016 LEAD ATTORNEY

Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 3 of 7

Defendant John B. King, Jr. in his official capacity as United States Secretary of Education
Interested Party Patrick McCrory

James O. Bickford (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James (See above for address) TERMINATED: 07/18/2016 LEAD ATTORNEY
James O. Bickford (See above for address) ATTORNEY TO BE NOTICED
represented by Karl S. Bowers , Jr. Bowers Law Office LLC Post Office Box 50549 Columbia, SC 29250 803−753−1099 Email: butch@butchbowers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William W. Stewart , Jr. Millberg, Gordon and Stewart, PLLC 1101 Haynes Street, Suite 104 Raleigh, NC 27604−1499 919−836−0090 Fax: 919−836−8027 Email: bstewart@mgsattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brennan Tyler Brooks Thomas More Law Center 24 Frank Lloyd Wright Drive Suite J 3200 P.O. Box 393 Ann Arbor, MI 48106 336−707−8855 Fax: 734−930−7160 Email: tbrooks@thomasmore.org ATTORNEY TO BE NOTICED
Frank J. Gordon Millberg Gordon Stewart PLLC 1101 Haynes Street Suite 104 Raleigh, NC 27604−1455 (919)836−0090 Fax: (919)836−8027 Email: fgordon@mgsattorneys.com ATTORNEY TO BE NOTICED
Robert C. Stephens Office of the Governor 116 West Jones Street Raleigh, NC 27699 919−814−2027 Fax: 919−715−2366 Email: bob.stephens@nc.gov ATTORNEY TO BE NOTICED

Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 4 of 7

Interested Party Frank Perry Interested Party Philip Berger
Interested Party Tim Moore

represented by Karl S. Bowers , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stuart K. Duncan Schaerr Duncan LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202−714−9492 Email: KDuncan@Schaerr−Duncan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gene C. Schaerr Schaerr Duncan LLP 1717 K Street NW, Suite 900 Washington, DC 20006 202−787−1060 Email: GSchaerr@Schaerr−Duncan.com ATTORNEY TO BE NOTICED
Robert D. Potter , Jr. Robert D. Potter, Jr., Attorney at Law 2820 Selwyn Avenue, #840 Charlotte, NC 28209 704−552−7742 Email: rdpotter@rdpotterlaw.com ATTORNEY TO BE NOTICED
represented by Stuart K. Duncan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gene C. Schaerr (See above for address) ATTORNEY TO BE NOTICED
Robert D. Potter , Jr. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/10/2016
05/10/2016 05/11/2016 05/11/2016

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Filing fee $ 400, receipt number 0417−3678475) filed by North Carolinians for Privacy. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Proposed Summons, # 6 Proposed Summons) (Dewart, Deborah) (Entered: 05/10/2016)
2 Financial Disclosure Statement by North Carolinians for Privacy. (Dewart, Deborah) (Entered: 05/10/2016)
Notice to Counsel − All counsel must file a Notice of Appearance pursuant to Local Civil Rule 5.2(a). (Baker, C.) (Entered: 05/11/2016)
3 Summonses Issued as to All Defendants. (*NOTICE: Counsel shall print the attached summonses and serve with other case opening documents in accordance with

Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 5 of 7

05/12/2016 05/16/2016 05/16/2016 05/16/2016 05/17/2016 05/17/2016 05/23/2016 05/24/2016 05/24/2016 05/24/2016 06/14/2016 06/14/2016
06/15/2016
06/16/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016

Fed.R.Civ.P. 4.*) (Baker, C.) (Entered: 05/11/2016)
4 Notice of Appearance filed by Deborah J. Dewart on behalf of North Carolinians for Privacy. (Dewart, Deborah) (Entered: 05/12/2016)
5 Notice of Appearance for non−district counsel by David A. Cortman on behalf of North Carolinians for Privacy. (Cortman, David) (Entered: 05/16/2016)
6 Notice of Appearance for non−district counsel by Joseph E. La Rue on behalf of North Carolinians for Privacy. (La Rue, Joseph) (Entered: 05/16/2016)
7 Notice of Appearance for non−district counsel by Jeremy D. Tedesco on behalf of North Carolinians for Privacy. (Tedesco, Jeremy) (Entered: 05/16/2016)
8 Notice of Appearance for non−district counsel by James A. Campbell on behalf of North Carolinians for Privacy. (Campbell, James) (Entered: 05/17/2016)
9 Notice of Appearance for non−district counsel by Kristen K. Waggoner on behalf of North Carolinians for Privacy. (Waggoner, Kristen) (Entered: 05/17/2016)
10 Notice of Appearance for non−district by John Matthew Sharp on behalf of North Carolinians for Privacy. (Sharp, John) (Entered: 05/23/2016)
11 Notice of Appearance for non−district by Jonathan Caleb Dalton on behalf of North Carolinians for Privacy. (Dalton, Jonathan) (Entered: 05/24/2016)
12 MOTION to Consolidate Cases filed by North Carolinians for Privacy. (Attachments: # 1 Text of Proposed Order) (Dewart, Deborah) (Entered: 05/24/2016)
13 Memorandum in Support regarding 12 MOTION to Consolidate Cases filed by North Carolinians for Privacy. (Dewart, Deborah) (Entered: 05/24/2016)
14 Notice of Appearance filed by James O. Bickford on behalf of All Defendants. (Bickford, James) (Entered: 06/14/2016)
15 Memorandum in Opposition regarding 12 MOTION to Consolidate Cases filed by John B. King, Jr, Loretta E. Lynch, United States Department of Education, United States Department of Justice. (Bickford, James) (Entered: 06/14/2016)
**** Set Hearing − Telephonic Rule 16 Status Conference and Motion Hearing as to 12 MOTION to Consolidate Cases set for 6/21/2016 at 10:00 AM before District Judge Louise Wood Flanagan. *Counsel will be provided dial−in instructions in advance of the telephonic hearing* (Tripp, S.) (Entered: 06/15/2016)
16 Notice of Appearance filed by Michael James on behalf of All Defendants. (James, Michael) (Entered: 06/16/2016)
17 Notice of Appearance filed by Brennan Tyler Brooks on behalf of Patrick McCrory. (Brooks, Brennan) (Entered: 06/17/2016)
18 Notice of Appearance filed by William W. Stewart, Jr. on behalf of Patrick McCrory. (Stewart, William) (Entered: 06/17/2016)
19 Notice of Appearance filed by Frank J. Gordon on behalf of Patrick McCrory. (Gordon, Frank) (Entered: 06/17/2016)
20 Notice of Appearance for non−district by Karl S. Bowers, Jr. on behalf of Patrick McCrory, Frank Perry. (Bowers, Karl) (Entered: 06/17/2016)
21 RESPONSE to Motion regarding 12 MOTION to Consolidate Cases filed by Patrick McCrory, Frank Perry. (Stewart, William) (Entered: 06/17/2016)
22 Financial Disclosure Statement by Patrick McCrory. (Stewart, William) (Entered: 06/17/2016)
23 Financial Disclosure Statement by Frank Perry. (Bowers, Karl) (Entered: 06/17/2016)
24 REPLY to Response to Motion regarding 12 MOTION to Consolidate Cases filed by North Carolinians for Privacy. (Campbell, James) (Entered: 06/17/2016)

Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 6 of 7

06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/20/2016
06/20/2016 06/20/2016 06/21/2016 06/21/2016
06/28/2016 06/28/2016
06/28/2016
06/29/2016

Motion Submitted to District Judge Louise Wood Flanagan − 12 MOTION to Consolidate Cases. (Baker, C.) (Entered: 06/17/2016)
25 Notice of Appearance filed by Stuart K. Duncan on behalf of Philip Berger, Tim Moore. (Duncan, Stuart) (Entered: 06/17/2016)
26 Notice of Appearance filed by Robert D. Potter, Jr. on behalf of Philip Berger, Tim Moore. (Potter, Robert) (Entered: 06/17/2016)
27 RESPONSE in Support regarding 12 MOTION to Consolidate Cases filed by Philip Berger, Tim Moore. (Duncan, Stuart) (Entered: 06/17/2016)
28 Notice of Appearance filed by Gene C. Schaerr on behalf of Philip Berger, Tim Moore. (Schaerr, Gene) (Entered: 06/17/2016)
NOTICE OF DEFICIENCY regarding: 25 Notice of Appearance, 28 Notice of Appearance − Counsel failed to attach a certificate of service pursuant to Fed. R. Civ. P. 5(d) and Section F(3) of the Court's CM/ECF Electronic Policies and Procedures Manual. Counsel should file a separately captioned certificate of service using the appropriate event located under the Civil Events − Service of Process category. (Tripp, S.) (Entered: 06/20/2016)
Remark − 27 RESPONSE in Support submitted to District Judge Louise Wood Flanagan. (Tripp, S.) (Entered: 06/20/2016)
29 Certificate of Service filed by Philip Berger, Tim Moore regarding 28 Notice of Appearance . (Schaerr, Gene) (Entered: 06/20/2016)
30 Notice of Appearance filed by Robert C. Stephens on behalf of Patrick McCrory. (Stephens, Robert) (Entered: 06/21/2016)
31 Minute Entry for proceedings held before District Judge Louise Wood Flanagan in New Bern: Telephonic Rule 16 Status Conference and Motion Hearing as to 12 MOTION to Consolidate Cases held on 6/21/2016. Counsel present for all parties. Court hears oral argument as to motion and procedural posture of the case. Matters taken under advisement. Written order to follow. (Court Reporter − David Collier) (Baker, C.) (Entered: 06/21/2016)
32 *DOCUMENT CORRECTED AND REFILED AT DOCKET ENTRY 33 * − Affidavit of Service for Summons and Complaint filed by North Carolinians for Privacy served on Defendants on 06/21/2016. (Campbell, James) Modified on 6/29/2016 to insert refiling information. (Baker, C.) (Entered: 06/28/2016)
NOTICE OF DEFICIENCIES regarding 32 Affidavit of Service − Filing is not text searchable. Local Civil Rule 5.1 requires that all documents submitted for filing be in a text searchable format. Also, supporting documents should be filed as attachments to the underlying filing. Pursuant to Section L(2) of the court's CM/ECF Policies and Procedures Manual, attachments and exhibits must be identified with a clear and complete description of the document. Each exhibit or attachment must be separated as a filing party would do when creating a hard copy version of the documents. When filing a document with more than five (5) exhibits or attachments, the first attached document must be an index of all of the subsequently attached documents. Counsel is directed to refile the document with the necessary corrections. (Baker, C.) (Entered: 06/28/2016)
33 Affidavit of Service for Summons and Complaint filed by North Carolinians for Privacy served on Defendants on 06/21/2016. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − US Dept of Justice, # 3 Exhibit B − Loretta Lynch, # 4 Exhibit C − US Dept of Education, # 5 Exhibit D − John B King Jr, # 6 Exhibit E − US Attorney Civil Process Clerk, # 7 Exhibit F − US Attorney General, # 8 Exhibit G − James Bickford) (Campbell, James) (Entered: 06/28/2016)
34 ORDER denying 12 Motion to Consolidate Cases − On its own initiative, having heard from the parties further at hearing and conference June 21, 2016, the court TRANSFERS case number 5:16−CV−240−FL and case number 5:16−CV−245−FL to the Middle District. Signed by District Judge Louise Wood Flanagan on 6/29/2016. (Baker, C.) (Entered: 06/29/2016)

Case: 5:16-cv-245 As of: 11/03/2017 12:14 AM EDT 7 of 7

06/30/2016 07/15/2016 07/15/2016 07/18/2016

Remark − Case transferred from North Carolina Eastern District has been opened in North Carolina Middle District as case 1:16−cv−00845, filed 06/29/2016. (Baker, C.) (Entered: 06/30/2016)
35 MOTION to Withdraw as Attorney filed by United States Department of Justice. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw) (James, Michael) (Entered: 07/15/2016)
36 Memorandum in Support regarding 35 MOTION to Withdraw as Attorney filed by United States Department of Justice. (James, Michael) (Entered: 07/15/2016)
37 ORDER granting 35 Motion to Withdraw as Attorney − Signed by District Judge Louise Wood Flanagan on 7/18/2016. (Baker, C.) (Entered: 07/18/2016)