Equity & Diversity

N.C. Governor, Justice Dept. Sue Each Other Over Transgender Restroom Access

By Evie Blad — May 09, 2016 4 min read
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The battle over North Carolina’s so-called “bathroom law” heated up Monday when the state and the U.S. Department of Justice filed dueling lawsuits over the federal agency’s assertion that the law, known as H.B. 2, violates federal civil rights laws.

North Carolina Gov. Pat McCrory first sued the Justice Department rather than comply with a Monday deadline it had given the state to halt the law’s application.

Later Monday, the Justice Department counter-sued the state, McCrory, and the University of North Carolina system, alleging that the state was in violation of Title VII, Title IX, and the Violence Against Women Act when it enacted a provision in H.B. 2 that restricts access to restrooms and locker rooms in public schools and buildings on the basis of biological sex, not gender identity.

“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,” U.S. Attorney General Loretta Lynch said in an afternoon news conference, where she compared the fight over the state’s law to civil rights battles of the past.

Lynch said the Justice Department would “retain the option” to withhold funding from the university system and the state’s department of public safety in the future.

The Justice Department put North Carolina leaders on notice last week that state’s law violated sex-discrimination protections by creating the first state-level restrictions on which restrooms and locker rooms transgender students can use in public schools and by limiting restroom access for employees covered by federal employment laws. Federal officials gave the state until today to respond.

But, rather than assure federal leaders he would delay the bill’s implementation, McCrory sued for relief from a “radical reinterpretation of the Civil Rights Act.”

“The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina,” McCrory said in a statement. “This is now a national issue that applies to every state and it needs to be resolved at the federal level. They are now telling every government agency and every company that employs more than 15 people that men should be allowed to use a women’s locker room, restroom or shower facility.”

At an afternoon press conference before the Justice Department filed its counter suit, McCrory said the agency had denied his request for a two-week extension to respond to its letter. The agency offered the state one week if McCrory publicly agreed with its interpretation of the civil rights laws, which he said he would not do.

“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions under Title VII and Title IX,” he said.

The state’s suit focuses on Title VII employment laws, but the Justice Department has also said that North Carolina’s law violates Title IX, which puts the state’s federal funding for K-12 schools, colleges, and universities at risk. That federal interpretation of Title IX was recently upheld as valid by the 4th U.S. Circuit Court of Appeals in Richmond, Va., which said a lower court erred by not siding with the federal agencies’ interpretation of the law. It remanded the decision back to the lower court for reconsideration, a decision that has been challenged by the Virginia school district at the heart of that case. The 4th circuit has jurisdiction over North Carolina.

Bob Stephens, McCrory’s general counsel, said the governor left it to the University of North Carolina, which also received a letter from the Justice Department, to respond to the Title IX claims. The Justice Department’s counter suit focuses its Title IX claims on the university system, and does not mention the state’s public schools.

Because an appeal of the 4th Circuit’s decision is still pending and because the lower court has not reconsidered its ruling on Title IX, Stephens said the ruling did not apply to public schools in North Carolina.

Title VII refers to sex discrimination in employment. Federal courts have previously held that employers violated the law by firing or refusing to hire people who were transgender or transitioning between genders.

Before the suit was filed, McCrory discussed the state’s showdown with the Justice Department on Fox News Sunday.

This post will be updated.

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A version of this news article first appeared in the Rules for Engagement blog.