US, NC sue each other over HB2
WASHINGTON – The battle over transgender rights expanded sharply Monday when North Carolina and the federal government sued each other over a new state law that requires people use the restroom corresponding with their gender at birth.
Just hours after Gov. Pat McCrory accused the federal government of wrongly applying federal civil rights laws to transgender people, the Justice Department sued North Carolina for what it called "state-sponsored discrimination" against them.
With stern words delivered from Raleigh and Washington D.C., McCrory and U.S. Attorney General Loretta Lynch escalated the legal fight over the rights of people who identify with the gender opposite from their birth, and how state and local governments can either accommodate them or ostracize them.
The federal government alleges McCrory’s willingness to enforce the state's law, known as House Bill 2 or HB2, “constitutes a pattern or practice of employment discrimination on the basis of sex” in violation of the federal civil rights law. Lynch, who called North Carolina her home state, compared the state's actions to states that resisted federal desegregation efforts.
"This is a time to summon our national virtues of inclusivity, diversity, compassion and open-mindedness," Lynch said.
The state’s “compliance with and implementation of HB2 stigmatizes and singles out transgender employees, results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect,” according to the DOJ’s lawsuit.
The Justice Department lawsuit was filed in the Middle District of North Carolina. McCrory’s case was filed in the Eastern District.
Lynch said withholding federal funds from North Carolina is an option but she would not pursue that route immediately.
"This action is about a great deal more than just bathrooms," Lynch said. "This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them – indeed, to protect all of us."
In Western North Carolina, U.S. Rep. Mark Meadows, R-Jackson, said he supported McCrory's lawsuit.
"This action by the DOJ is yet another example of the federal government attempting to bully states by engaging in serious executive overreach and rewriting state laws to fit their own agenda," Meadows said.
McCrory said he wants the federal courts to clarify the law.
“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. "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.”
HB2 requires transgender people to use the restroom, locker room or changing facility matching their gender at birth, not the gender they identify with as adults.
The Justice Department's civil rights division last week notified the state that the law violates Title VII of the Civil Rights Act, which prohibits discrimination against people on the basis of sex. The agency warned the state, its Department of Public Safety and the University of North Carolina enforcing HB2 would amount to a pattern or practice of discrimination against transgender state employees.
“Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment," according to the May 4 letter from the Justice Department. "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."
In addition to defining the rights of transgender people, the battle between McCrory and the federal government also could affect the state’s access to federal funding for education and other state functions.
“I’m taking this initiative to ensure that North Carolina continues to receive federal funding until the courts resolve this issue,” McCrory said Monday in the statement.
McCrory said HB2 provides “common sense bodily privacy protections” and that transgender people cannot be a special protected class under federal civil rights laws without a new law passed by Congress.
In response to the Justice Department’s statement that it would seek a court order against North Carolina to ensure compliance with civil rights laws, McCrory’s lawsuit called the threat “real but misplaced.”
“North Carolina does not treat transgender employees differently from non-transgender employees,” the lawsuit states. “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.”
In the filing Monday, McCrory accused the Justice Department of a “radical reinterpretation” of civil rights law.
“The Department’s position is a baseless and blatant overreach,” the lawsuit states. “This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts.”
McCrory, speaking to reporters in Raleigh on Monday, said the Justice Department wanted him to state publicly that he agrees with the agency’s assertion that anti-discrimination laws apply to transgender people, in exchange for getting more time to respond to the Justice Department. McCrory said he declined, which is why he filed suit on Monday.
“I could not agree with that because I do not agree with their interpretation of federal law,” McCrory said.
He said he wants a federal court or Congress – not a single federal agency – to settle how to balance expectations of personal privacy and equality when it comes to restroom policy.
“The majority of our citizens… did not seek out this issue,” the governor said. “However, the state of North Carolina and this governor welcome the opportunity to be a part of the solution for all of the states and especially our nation.”
White House Press Secretary Josh Earnest said federal agencies continue to review whether federal funding to North Carolina should be revoked because of the law.
“The position of the North Carolina government has not changed; they're asserting that this mean-spirited law is somehow consistent with the Civil Rights Act and with our values,” he said. “And I think the president has spoken pretty powerfully to the idea that what the state of North Carolina has passed in a one-day special session is inconsistent with the values of fairness, equality and justice that we hold dear in this country.”
Asheville resident Zeke Christopoulos criticized McCrory’s move. Christopoulos, who co-directs Tranzmission, a local nonprofit working to support the lives of transgender and gender nonbinary populations, said HB2 is bad for the state and will result in the loss of federal funding and expensive, lengthy legal battles.
“It’s a scary time,” he said. “Because of their egos, they are putting the whole state at risk.”
For transgender populations and their allies, the governor’s stance strikes a personal cord, added Christopoulos, a transgender male. “It keeps us living in a place of fear,” he said. “It’s something that is basically vilifying us, saying we’re bad people. There are huge psychological and social costs associated with that.”
Allison Scott has lived in Asheville all her life. She said governor’s actions make her ashamed to be from North Carolina.
"He wants to defend a blatantly discriminatory law,” she said.
Opponents of the HB2 plan to take their message to McCrory later this week, protesting during the annual Spring Open House at the North Carolina Governor’s Western Residence on May 14.
“The question before us now is simply how long will it take for the General Assembly to repeal the law or for the courts to strike it down,” said Aaron Sarver, spokesman for the Campaign for Southern Equality. “HB2 is unconstitutional.”
Since the bill’s initial passage, more than 100 local businesses have put up “all gender” bathroom signs distributed by the nonprofit advocacy group fighting for equal rights for LGBT people.
Contributing: Beth Walton, Asheville Citizen-Times; Gregory Korte, USA Today;