Any chance that North Carolina and federal authorities might quickly resolve their standoff over whether the state’s House Bill 2 is discriminatory to transgender people dissolved in a trio of lawsuits on Monday.
U.S. Attorney General Loretta Lynch capped the day’s escalating legal fight when she took to a podium in Washington, D.C., to condemn the law.
“You’ve been told that this law protects vulnerable populations from harm – but that just is not the case,” Lynch said. “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.”
Last week, the U.S. Department of Justice, led by Lynch, gave Gov. Pat McCrory until Monday to denounce the law, which was enacted in March and requires people in government buildings to use bathrooms that correspond to the sex on their birth certificates. Instead, McCrory and legislative leaders filed separate suits asking that a judge determine the law is not discriminatory.
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That prompted the Justice Department to file its own lawsuit, seeking an injunction to suspend the law while a judge determines that it is illegal.
“I want to assure the people of our state and our country North Carolina has long-held traditions of ensuring equality,” McCrory said, reading a six-minute statement to state and national news media at the Executive Mansion.
McCrory, who did not answer reporters’ questions but made his legal counsel available, defended the actions he and state lawmakers took to enact the law.
McCrory sued the Justice Department in North Carolina’s eastern district of federal court, saying federal authorities made a “radical reinterpretation” of the Civil Rights Act by requiring the state to allow transgender people to use restrooms according to how they view themselves, and not according to their birth sex.
Separately on Monday, Senate leader Phil Berger and House Speaker Tim Moore sued the Justice Department in the same district, also seeking a judicial ruling that the law doesn’t violate the Civil Rights Act. McCrory, Berger and Moore are Republicans.
The governor said the Justice Department last week had not given the state enough time to respond when it set a deadline of 5 p.m. Monday to declare that House Bill 2 would not be enforced. He said he asked for a two-week delay in that deadline. But Justice Department officials countered by offering a one-week extension only if he made a public statement agreeing that the law was discriminatory.
“I could not agree with that because I do not agree with their interpretation of federal law,” McCrory said.
Lynch, however, said talks had been ongoing about whether to extend the deadline. “I think it’s unfortunate that the governor’s actions curtailed that,” she said.
AG invokes Jim Crow era
Lynch, who was born in Greensboro and grew up in Durham, addressed her home state.
“Instead of turning away from our neighbors, our friends, our colleagues, let us instead learn from our history and avoid repeating the mistakes of our past,” she said. “It was not so very long ago that states, including North Carolina, had signs above restrooms, water fountains and on public accommodations keeping people out based upon a distinction without a difference. We have moved beyond those dark days, but not without pain and suffering and an ongoing fight to keep moving forward. Let us write a different story this time.”
The Justice Department says 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. McCrory’s lawsuit only addresses the Title VII employment protections, and concerns whether all state employees have the same right of access to restrooms.
In its lawsuit, the Justice Department wrote: “An individual’s ‘sex’ consists of multiple factors, which may not always be in alignment … Although there is not yet one definitive explanation for what determines gender identity, biological factors, most notably sexual differentiation in the brain, have a role in gender identity development.”
McCrory’s lawsuit contends that “the overwhelming weight of legal authority” recognizes that Title VII doesn’t extend protections to transgender people.
“The Department’s threat is real but misplaced,” the governor’s lawsuit states. “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity or transgender status.”
The suit was filed by McCrory’s general counsel, Bob Stephens, and private attorneys Karl Bowers Jr. of Columbia, S.C., and William Stewart Jr. of Raleigh.
In his statement, McCrory reiterated blame for the controversy lies with Charlotte’s City Council, which adopted an ordinance extending restroom use to transgender people according to their gender identity, rather than their biological sex at birth. House Bill 2 blocks that ordinance and other local anti-discrimination protections for lesbian, gay, bisexual and transgender people.
Stephens said it is up to the UNC Board of Governors to decide how the university system should respond to the Justice Department’s warning, which was sent to the UNC system, McCrory and the state Public Safety Department. Lynch said the Justice Department has been in contact with the university system and is not yet at a point where federal education funds are in danger of being withheld.
The UNC board meets on Tuesday. UNC system President Margaret Spellings said Monday the system is caught in the middle of state and federal governments.
Virginia case has implications for NC
Legal analysts said a Virginia case could suggest a tough legal road ahead for HB2 advocates.
In April, the 4th U.S. Circuit Court of Appeals issued an order in the case of a Virginia transgender teen who sued his school district over a bathroom ban. That case has implications for North Carolina because it is one of the states that falls within the 4th Circuit.
In that order, which sent the case back to a lower court for further deliberation, the three-judge panel sided with the federal Education Department’s interpretation that Title IX, the section of federal law that prohibits gender discrimination and harassment in schools, protects the rights of students to use the bathroom that corresponds with their gender identity.
Judge Henry Floyd, writing for the majority in the Virginia opinion, highlighted a federal Department of Education Office of Civil Rights opinion letter dated Jan. 7, 2015. In it, federal officials said it was OK for schools to have “separate toilet, locker room, and shower facilities on the basis of sex” as long as the facilities provided for one gender were comparable to what was provided to the other. “When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.”
The federal courts have not decided the Title VII issue, though the Equal Employment Opportunity Commission and the federal Occupational Safety and Health Administration both have taken stances similar to the federal Education Department.
Kim Yarucko, a law professor at Northwestern University in Illinois who studies gender equity in employment, said Monday she thought it was interesting that the governor's complaint focused on Title VII and not Title IX or the Violence Against Women Act.
“That might be a legal strategy,” Yarucko said, without speculating on the prospects.
Unlike Republican leaders, federal officials filed their lawsuit in the state’s middle district. Michael Gerhardt, a UNC-Chapel Hill law professor who specializes in constitutional conflicts, said Monday that eventually he expects the cases filed by the governor and Justice Department to be consolidated in one district.
“Of course, the governor filed in the district he thinks is the most conservative and the federal government is trying to counter in the district where they think they will do the best,” Gerhardt said.
Gerhardt said he thinks federal law supports the Justice Department’s position.
Gerhardt said that some have described HB2 as a solution looking for a problem and he would describe McCrory’s actions Monday as “a political decision in search of a legal argument.”
“The political choice is grounded in a disdain for federal law,” Gerhardt said. “But legal arguments don’t turn on the politics of it. … They want to be able to make their political points and extend them as legal arguments. However, federal law, I think, is pretty clear.”
HB2 and the lawsuits have quickly become fodder for political messages.
State Attorney General Roy Cooper, who is a Democrat challenging Republican McCrory, said the governor was “pouring gas on the fire that he lit.”
“For decades, North Carolina has been a beacon in the South with great universities, technology and forward-thinking leaders,” Cooper said. “But now, the governor is putting all that and more at risk with his partisan gamesmanship.”
Republican supporters of the law have tied the Justice Department’s involvement to Democratic President Barack Obama. His White House has said he was not involved.