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North Carolina’s Governor Is Fighting Back Against the Department of Justice

Governor PatMcCrory claims the state’s new bathroom law doesn’t violate the Civil Rights Act.

By Kate Wheeling


North Carolina Governor Pat McCrory. (Photo: Davis Turner/Getty Images)

The controversy over transgender rights in North Carolina mounted on Monday after the state’s governor, Pat McCrory, filed a lawsuit against the Department of Justice (DOJ). The lawsuit accuses the department of overreaching in its warning to North Carolina last week that the state’s new law limiting bathroom access by biological sex violated the Civil Rights Act.

The law was passed in March, when North Carolina’s General Assembly convened a special session to introduce the legislation, known as House Bill 2, that supersedes local ordinances like the one Charlotte had passed to protect transgender people from discrimination by businesses.

Civil rights lawyers with the DOJ gave McCrory until today to respond to the warning with a plan to remedy the violation, to which he responded with a lawsuit. Failure to comply with civil rights law could cost the state billions in federal funding, according to the Wall Street Journal; North Carolina already took an economic hit when several companies boycotted the state in the wake of the new law, and McCrory’s suit would allow North Carolina to continue to receive federal funds until the lawsuit is decided.

The central question of the suit, which was filed in a Federal District Court in North Carolina, will be whether the Civil Rights Act’s Title VII ban on sex discrimination applies to anti-transgender discrimination. McCrory has called the DOJ’s position a “radical reinterpretation” of the law, according to the New York Times. But is it really all that radical?

In the past, the Equal Employment Opportunity Commission , a federal agency that protects employees from workplace discrimination, has successfully argued that Title VII includes a ban on gender-based discrimination. In 2015, Pacific Standard’s Michael Fitzgerald wrote about the case of Kerry Woods, a construction worker who was harassed by a Boh Brothers Construction Company manager for his allegedly effeminate behavior, such as his preference for wet wipes over toilet paper. Fitzgerald wrote:

This time, the accusation was that one straight man had imposed gender-conforming demands on another straight man. The EEOC argued that Woods had a right, under Title VII, to be biologically male yet behave in a stereotypically feminine manner. As Tanya Goldman, an EEOC lawyer representing Woods, explained in her opening remarks to a New Orleans federal courtroom in 2011, “If a person discriminates against an employee because the employee does not conform to gender stereotypes, that is also sex discrimination.”

North Carolina is pushing back against the DOJ for now, but other recent interpretations of civil rights law by circuit courts suggests the state is fighting a losing battle. The Wall Street Journalreports on another recent case:

The Obama administration’s view of civil-rights law recently prevailed in a lawsuit filed by a transgender student in Virginia challenging a school district policy banning him from the boys’ restroom. The ruling by the Richmond-based Fourth U.S. Circuit Court of Appeals reinstated legal claims by high school junior Gavin Grimm that his school’s policy violated a federal law barring discrimination based on sex.

Nina Martin reported last month that the uproar over the bathroom provision of the new legislation drew attention away from other provisions with even more sweeping ramifications:

As has been widely reported, the North Carolina legislature rushed last month to pass HB2, the Public Facilities Privacy & Security Act, which requires transgender people (and everyone else) to use public restrooms according to the biological sex on their birth certificate. It also bars local governments from passing ordinances like Charlotte’s.

The legislation doesn’t stop there, however. Tucked inside is language that strips North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985. “If you were fired because of your race, fired because of your gender, fired because of your religion,” said Allan Freyer, head of the Workers’ Rights Project at the N.C. Justice Center in Raleigh, “you no longer have a basic remedy.”

Even if the DOJ prevails here in its case against North Carolina’s discriminatory bathroom policies, it would leave these lesser-publicized provisions in place.