North Carolina legislative leaders sought Monday to intervene in the lawsuit challenging House Bill 2 that the federal justice department filed against the governor, the state department of public safety and the UNC system and its board of governors.
Phil Berger, president pro tempore of the state Senate, and Tim Moore, leader of the state House, filed a request in the U.S. Middle District of North Carolina, arguing that the justice department’s suit “is a direct challenge to the validity under federal law of a critically important state statute – the ‘Public Facilities Privacy and Security Act’ ... commonly known as HB2 – which seeks to protect the privacy and safety of people using publicly owned bath, locker and shower facilities throughout the State.”
U.S. Attorney General Loretta Lynch, a native of Greensboro who grew up in Durham, filed suit against her home state on May 9, contending that HB2 violates Title VII of the Civil Rights Act, which governs employment; Title IX dealing with education and the Violence Against Women Act, which was reauthorized in 2013 to include gender identity as a protected class.
Her lawsuit was filed the same day that Gov. Pat McCrory asked the federal court in the U.S. District of Eastern North Carolina to determine whether the federal government’s interpretation that gender identity was protected under Title VII was accurate.
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Lynch has said that while the Justice Department is seeking a court order blocking HB2, the department reserves the option of withholding federal funding from the North Carolina Department of Public Safety and the University of North Carolina system.
HB2 was adopted in an emergency legislative session in March after the Charlotte City Council adopted a citywide ordinance that would have allowed transgender people to use restrooms that matched the gender with which they identified.
In a request last week, McCrory sought to move his case from the Eastern District, which includes Raleigh, to the Middle District, which spans across the Piedmont from Durham to Winston-Salem. McCrory’s lawyers wrote that the federal government is unopposed to the request that “would greatly enhance efficiency … while avoiding piecemeal litigation.”
Though attorneys for Berger and Moore reached out to the attorneys in the U.S. suit against McCrory, they did not receive a response as to whether they were opposed to or supportive of the legislative leaders consolidating the complaint they filed in federal court on May 9 with the other two suits. A judge would have to allow them to join the lawsuit being watched by many across the country as a bellwether case.
“[T]he existing defendants have authority over only limited segments of the state entities and instrumentalities that would be affected by an adverse decision,” attorneys for Berger and Moore argued.
The attorneys for the legislative leaders argued that McCrory’s authority does not extend to the legislative branch of government, nor does he have authority over the state’s public schools subject to Title IX laws.
“Second, and more concretely, the remarkable legal theory advanced by the department in this case would leave the State and its various instrumentalities with no effective way to protect the privacy and safety of the millions of North Carolinians using publicly owned bath, locker and shower facilities, including facilities in public schools,” the attorneys for Moore and Berger argue.
They contend that under the federal justice department’s “theory, it is apparently illegal for the police or other public officials to bar a person with mature, functioning male genitalia from a publicly owned ladies’ bath, locker or shower facility if that person merely claims to ‘identify’ as a ‘woman.’”
“That radical legal theory subjects every North Carolina female who dares use a publicly owned facility to the unwelcome sight of unclothed males in close proximity in the intimate settings of locker rooms and showers,” the legislative leaders argue. “It also subjects every North Carolina female using such a facility to a heightened risk of sexual predation by men falsely claiming to ‘identify’ as women—including some 23,000 registered sex offenders currently residing in the state.”
Critics of HB2 point out that other North Carolina laws prohibit sexual assault, peeping and indecent exposure.
When announcing the lawsuit against North Carolina, Lynch spoke directly to North Carolinians: “You’ve been told that this law protects vulnerable populations from harm – but that just is not the case.”
Berger and Moore argue that allowing transgender residents to choose which restrooms and locker rooms they use in public restrooms and locker rooms is “a subjective approach in which what it means to be a man or woman is merely a psychological construct.”
“The Department’s avant-garde view is absurd, and its implementation would wreak havoc on North Carolina law in numerous areas, including state employment law, fair housing law, and family law,” their request to intervene states.
Lynch, in her statement after filing the lawsuit also spoke directly to the transgender community, saying the justice department and Obama administration stood with them. “Please know that history is on your side,” Lynch said. “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.”