The Governor of North Carolina and the Obama Justice Department have filed cross lawsuits in the dispute related to North Carolina’s House Bill 2 which, among other things, purports to restrict transgender individuals to using the bathroom corresponding to their genetic gender rather than the gender they identify with:
RALEIGH, N.C. — The nation’s clash over the rights of transgender people escalated sharply on Monday as Gov. Pat McCrory of North Carolina and the Justice Department sued each other, testing the boundaries of federal civil rights laws in a dispute over public restroom access.
Days after the Justice Department demanded that North Carolina back away from a new state law restricting access to restrooms, locker rooms and changing rooms, Mr. McCrory, in a lawsuit filed in Federal District Court here, accused the department of “a baseless and blatant overreach” stemming from a “radical reinterpretation” of the Civil Rights Act of 1964. The state General Assembly’s Republican leaders filed a similar suit against the Justice Department.
“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions,” Mr. McCrory, a Republican who is running for re-election this year, told reporters here. “Right now, the Obama administration is bypassing Congress by attempting to rewrite the law.”
Hours later, Attorney General Loretta Lynch said no clarification was needed, and she asserted that federal civil rights laws barring discrimination on the basis of sex prohibit laws like the one in North Carolina.
“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,” she said at a news conference in Washington. “None of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something or someone that they are not.”
Straying from her usual understated, lawyerly tone, Ms. Lynch, a North Carolina native, grew impassioned as she likened the fight to earlier battles over Jim Crow laws and laws against same-sex marriage.
“This is not the first time that we have seen discriminatory responses to historic moments of progress,” she said. Addressing transgender people, she added: “We see you. We stand with you, and we will do everything we can to protect you going forward.”
The Justice Department’s lawsuit, filed in a different federal court in the state, argued that North Carolina’s law, which prohibits people from using public restrooms that do not correspond with the gender listed on their birth certificates, compels “public agencies to follow a facially discriminatory policy.”
Even before the Justice Department challenged the law in court, the federal government had been examining how it could pressure North Carolina. Last month, federal agencies acknowledged that they were studying whether the law affected North Carolina’s eligibility for aid from Washington that helps pay for schools, highways and housing.
Mr. McCrory’s suit was assigned to Judge Terrence W. Boyle, an appointee of President George W. Bush and a former aide to Jesse Helms, the longtime conservative Republican senator from North Carolina. The Federal District Court for the Middle District of North Carolina, where the Justice Department filed its case, did not immediately assign a judge to handle the proceedings there.
The law has drawn scorn from businesses like PayPal and the N.B.A., has led to calls for a boycott of North Carolina, and has prompted some companies and entertainers to reverse plans to do business in the state. It even found its way into the presidential race, becoming a frequent theme of the final weeks of the campaign of Senator Ted Cruz, who said, “Grown adult men, strangers, should not be alone in a bathroom with little girls.”
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Mr. McCrory’s lawsuit left little doubt about his view of a Justice Department that Republicans here regard with open contempt. The department, the lawsuit said, was engaged in “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.”
Mr. McCrory and other Republicans said the law’s bathroom access provision was a bulwark against sexual assault, as Mr. Cruz suggested. But critics, many of whom have demanded a full repeal, said that transgender people had been using the bathroom of their choice for years without others noticing, and that it had not been a problem. In fact, the risk of assault, they said, would be to a person who appears to be a woman and identifies as a woman and is forced to use the men’s room.
In a letter to Mr. McCrory last week, Vanita Gupta, the Justice Department’s top civil rights official, said the North Carolina statute violated Title VII of the Civil Rights Act, which prohibits sex discrimination. In the Justice Department suit, which named the University of North Carolina as a defendant, the federal government also alleged violation of Title IX of the Education Amendments of 1972.
The first order of business will most likely be determining precisely how these two cases will be consolidated given that they raise nearly identical issues of fact and law and deal with basically the same facts, witnesses, and legal issues and would most likely be handled by the same attorneys. That issue is slightly complicated by the fact that the two lawsuits were filed in different Federal Court Districts. In the event that the parties are unable to reach an agreement on the matter that is accepted by both Courts, though, venue for the consolidated cases will likely be decided by a special panel within the Federal Court System created for the purpose of resolving these types of issues regarding multi-district litigation. It’s worth noting in this respect that there is also a lawsuit filed by citizens opposed to House Bill 2 currently pending in the Middle District of North Carolina, although the fact that it was filed last week likely means that very little action has taken place in the matter. In any case, once that issue is resolved the case will move forward into what is largely uncharted legal territory, namely the extent to which existing Federal anti-discrimination laws dealing with gender apply to discrimination based on sexual orientation or gender identity.
As things stand, the answer to that question remains up in the air.
Last year, the Department of Education took the position that a school district in the Chicago area violated Federal laws when it denied a transgender student access to the girls bathroom and showers on the ground that the individual in question was still biologically and physically male and that doing so would make other students feel uncomfortable put their safety at issue. In the past, though, Courts have not agreed on whether or not transgender students are covered under existing law. and unsafe. In reality, the state of the law in this area is nearly as clear-cut as the Obama Administration contends it is as Federal Courts in Virginia and Pennsylvania have ruled in the past that current Federal laws such as Title IX may not apply to transgender students at all, meaning that Congress would have to change the law for existing civil rights rights laws to apply to transgender Americans, something that doesn’t seem very likely at the moment. More recently, rhe Fourth Circuit Court of Appeals ruled that a transgender teen who whose born female can proceed with a lawsuit against their local school board over the issue of bathroom access in a ruling that largely accepted the legal arguments that the Department of Education made in the Chicago case. These are just a handful of examples of courts who have ruled on the matter, though, and cannot be said to completely definitive on the legal issues at stake in these cases. Most likely, we’re in for a long process of litigation and appeals before this issue is resolved unless economic pressure and political developments lead the North Carolina legislature to reconsider the bill it passed in haste last month. In any case, these will be worth keeping an eye on.
In any case here is Governor McCrory’s lawsuit:
McCrory Et Al v. United States by Doug Mataconis
And here is the Federal Government’s lawsuit:
