The United States and North Carolina tangled over transgender rights on Monday, with the Justice Department filing a civil rights lawsuit over the state’s so-called bathroom bill and state officials defiantly filing suits against the federal directive to stop the implementation of the controversial legislation.
The federal lawsuit, Attorney General Loretta Lynch told reporters, cast the fight as the latest in a line of civil rights struggles. The department seeks declaratory relief and threatens to curtail federal funding to the North Carolina Department of Public Safety and the University of North Carolina.
“It was not so very long ago that states, including North Carolina, had other signs above restrooms, water fountains, and on public accommodations, keeping people out based on a distinction without a difference. We’ve moved beyond those dark days,” Lynch said.
The act — House Bill 2 — bans people from using public bathrooms that do not correspond with their biological sex. Since its passage in March, North Carolina has become a national battleground on the issue of transgender rights. It has drawn a flurry of condemnation from civil liberties groups, LBGT advocates and major businesses.
After the law’s passage, musicians Bruce Springsteen, Demi Lovato, Nick Jonas, and the bands Pearl Jam and Boston canceled concerts in the state. Those cancellations have cost one major venue nearly $200,000 in ticket sales.
PayPal and Deutsche Bank have both canceled plans to expand into North Carolina.
The Justice Department said last week that “access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII” — a section of the Civil Rights Act prohibiting discrimination against workers on the basis of sex, race, color, national origin, and religion.
The federal government demanded the state “remedy” the act or risk being in violation of federal law.
Instead, Gov. Pat McCroy filed a lawsuit calling the Justice Department’s position a “radical reinterpretation of Title VII of the Civil Rights Act.” Top state legislators, Phil Berger and Tim Moore, also filed a complaint against the Justice Department.
But Lynch on Monday said the legislature and governor put the state in “direct opposition to federal laws prohibiting discrimination on the basis of sex and gender identity. More to the point, they created state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security, a right taken for granted by most of us.”
After the federal government asked the state to certify by the end of the day Monday that they would not comply with or implement the bill’s restriction on bathroom access, Lynch said the state requested an extension and that had been under “active consideration.”
Instead, the governor and the state chose another course: a lawsuit.
“But instead of replying to our offer or providing a certification, this morning, the state of North Carolina and its governor chose to respond by suing the Department of Justice. As a result of their decisions, we are now moving forward,” she said.
The suit also says the state is in violation of Title IX, the Education Acts Amendment of 1972 that bans gender discrimination in education, and the Violence Against Women Reauthorization Act that outlaws discrimination on the basis of sex.
“This action is a about a great deal more than bathrooms,” Lynch said. “This is about the dignity and the respect that we accord our fellow citizens and the laws that we as a people and as a country have enacted to protect them. Instead, to protect all of us. And it’s about the founding ideals that have led to this country haltingly but inexorably in the direction of fairness, inclusion, and equality for all Americans.”
Lynch likened the battle to past struggles for other rights.
“This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation. We saw it in the Jim Crow laws that follow the Emancipation Proclamation. We saw it in the fierce and widespread resistance to Brown V. Board of Education and we saw it in the proliferation of state bans on same-sex unions that were intended to stifle any hope that gay and lesbian Americans might one day be afforded the right to marry. And that right, of course, is now recognized as a guarantee embedded in our Constitution. And in the wake of that historic triumph, we have seen bill after bill in state after state taking aim at the LGBT community. ”
Lynch, who was born in North Carolina, spoke directly to her fellow North Carolinians. She said citizens have been incorrectly told that “this law protects vulnerable populations from harm, but that just is not the case. Instead, what this law does is inflict further indignity on a population that has already suffered far more than its fair share. This law provides no benefit to society — all it does is harm innocent Americans.”
She told transgender people that the Obama administration is behind them.
“Some of you have lived freely for decades. Others of you are still wondering how you can possibly live the lives you were born to lead. But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward,” she said. “Please know that history is on your side. This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time. It may not be easy — but we’ll get there together.”
‘Not a protected class’
The act puts in place a statewide policy that bans individuals from using public bathrooms that do not correspond to their biological sex and stops cities from passing anti-discrimination ordinances to protect gay and transgender identity. That power is reserved for the state under the new law.
North Carolina officials defend the act and said it doesn’t violate federal law.
The lawsuit filed by the governor and Public Safety Secretary Frank Perry calls the demand that the state “remedy” the legislation by Monday or risk being in violation of federal law “a baseless and blatant overreach” and it is making a “radical reinterpretation of Title VII of the Civil Rights Act.”
In a Monday news conference, McCrory blamed the city of Charlotte for raising the issue of gender identity and public restrooms. The matter was not on the state’s agenda, he said, until the city imposed a mandate that “caused major privacy concerns about males entering female facilities and females entering male facilities.”
Because, he said, this is now a national issue — and could affect every U.S. company with more than 15 employees — McCrory called on Congress to revisit the anti-discrimination provisions under Titles VII and IX.
“Our nation is one nation, especially when it comes to fighting discrimination, which I wholeheartedly support,” McCrory said.
North Carolina homes in on Title VII in its lawsuit, saying precedence is clear: “Transgender status is not a protected class under Title VII,” and it cites a half-dozen cases that it says back its stance. Only Congress can change this, the lawsuit says.
Even if the state felt transgender individuals were afforded federal protection, the Justice Department demands overstep because the law “allows accommodations based on special circumstances, including but not limited to transgender individuals.”
In a statement announcing the lawsuit, McCrory said the federal government was trying to tell every government agency and company employing more than 15 people “that men should be allowed to use a women’s locker room, restroom or shower facility.”
He said later that the “new, complex and emotional issue” pitted privacy against equality.
The lawsuit emphasizes that no one is facing discrimination because the law applies equally to everyone.
“All state employees are required to use the bathroom and changing facilities assigned to person of their same biological sex, regardless of gender identity, or transgender status,” it says.
Before Monday’s action, McCrory repeatedly said his response to the Justice Department would resonate beyond his state.
“This is no longer just a North Carolina issue,” he said in a Fox News interview Sunday. “This is a basic change of norms that we’ve used for decades throughout the United States of America and the Obama administration is now trying to change that norm — again not just in North Carolina, but they’re ordering this to every company in the United States of America — starting tomorrow I assume, or Tuesday.”
The lawsuit filed by Berger, North Carolina Senate president pro tempore and Moore, state House Speaker, reflected the views of many of the bill’s supporters that people “expect to encounter only other people of the same biological sex” when they are in intimate setting such as public bathrooms.
It says the “ideological extremity — and utter workability — of the department’s position on the issues in this case is astonishing. Unlike the people of North Carolina, the department believes that the only valid approach to issues of gender dysphoria is to allow anyone to use any communal public bathroom, locker room or shower based solely on that person’s self-declared ‘gender identity.’ Never mind that no federal statute or regulation remotely requires the department’s policy.
“Never mind that the department’s policy will inevitably lead to women and girls in public changing facilities encountering individuals who, whatever their gender identity, still have fully functional male genitals.”
Governor calls deadline ‘unrealistic’
McCrory’s argument against the feds is twofold — that the state of North Carolina hasn’t been given enough time to respond and that the federal government is overstepping its authority.
“This unrealistic deadline by the federal government is quite amazing,” he said in his Fox News interview. “It’s the federal government being a bully.”
McCrory said Monday that he requested an additional two weeks to respond but was told he would be granted one week, and only if he issued a statement concurring with the Justice Department.
“I could not agree to that because I do not agree with their interpretation of federal law,” he said.
McCrory also points to the fact that Title VII of the Civil Rights Act uses the term “sex” when it comes to gender issues, and “Congress does not define sex” as something that can be chosen.
“The Justice Department is making law for the federal government as opposed to enforcing it,” McCrory said.
Former Attorney General Eric Holder disagreed, and said in a 2014 memorandum that transgender discrimination claims are covered under Title VII. The Equal Opportunity Employment Commission also interprets Title VII as forbidding discrimination against transgender people.
But there seems little middle ground in the reactions to the lawsuit: Folks are either incensed at what they see as McCrory’s attempt to legislate discrimination, or they applaud the governor for defending the state in the face of federal intervention.
State Senate Minority Leader Dan Blue wondered aloud if the decision was fiscally responsible, tweeting, “We now face a costly legal battle over HB2 in addition to the threat of losing federal funding. Add it to McCrory’s tab.”
Progress NC Action, a nonprofit, accused McCrory of “doubling down on discrimination,” while other opponents to the bill, including the American Civil Liberties Union, the Human Rights Campaign, Lambda Legal and Equality NC — many of which have been outspoken throughout the process — decried the decision.
“Lawsuits are normally filed to stop discrimination — not to continue it,” the joint ACLU-Lambda Legal statement said.
Added Human Rights Campaign President Chad Griffin, “The idea Gov. McCrory is going to waste even more time and millions (of) more taxpayer dollars defending it is reckless and wrong. HB2 is a vile law attacking transgender North Carolinians and leaves many more unprotected from discrimination. Rather than defending it, Gov. McCrory should be working with state lawmakers to fix the mess he’s created.”
The ACLU and Lambda Legal applauded the Justice Department suit. The groups are presently challenging the law on behalf of six LGBT North Carolinians.
“This law is a targeted and unprecedented attack on the LGBT community, particularly against transgender people,” they said in a statement.
McCrory is not without his supporters either. Ahead of Monday’s lawsuit, the conservative Civitas Institute dubbed the Justice Department’s letter “federal blackmail,” and the American Family Association announced last month it was organizing a boycott of Target due to its “dangerous bathroom policy.” (Target said it would allow employees to use the bathroom that corresponds with their gender identity.)
Following news of the lawsuit, Keep NC Safe, a group that says it strives to “protect women’s bathrooms, showers and locker rooms,” lauded the state’s decision, tweeting to McCrory, “Well done!”
Family Research Council President Tony Perkins said in a statement that Obama was trying to “fundamentally transform America” and commended McCrory “for his political courage and moral clarity.”
“If the White House can dictate the bathroom policies of America, what could possibly be beyond their reach?” Perkins asked. “Gov. McCrory has already stared down big business seeking to topple North Carolina law. Now, the governor is making clear he’s not going to be intimidated by President Obama’s big government either.”
North Carolina could lose a lot of federal money for failing to comply with the Justice Department — potentially hundreds of millions of dollars for its universities alone.
The Justice Department also sent a letter to the University of North Carolina Board of Governors telling it that new act was in violation of federal law. It was given the same Monday deadline.
In his Monday statement, McCrory said he simply wanted a federal court “to clarify federal law.” He pointed out that he had directed state agencies to “make a reasonable accommodation of a single-occupancy restroom” and that the state allows private entities to dictate their own bathroom policies.
“I’m taking this initiative to ensure that North Carolina continues to receive federal funding until the courts resolve this issue,” he said.