Feds drop the hammer on North Carolina over bathroom law

by Gregory Tomlin |

RALEIGH, N.C. (Christian Examiner) – The Civil Rights Division of the U.S. Department of Justice (DOJ) has fired off a terse letter to the governor of North Carolina over House Bill 2, the state's recently passed law which prohibits men from using women's multi-occupancy restrooms and vice versa – a law LGBT advocates claim is discriminatory against transgenders.

In the May 4 letter to Gov. Pat McCrory, the DOJ claims the state and the governor are in breach of Title VII of the Civil Rights Act of 1964 after it passed (and he signed into law) HB 2. Title VII, the letter said, prohibits discrimination against transgenders.

"Specifically," the DOJ letter said, "the State is engaging in a pattern or practice of discrimination against transgender state employees and both you [the governor], in your official capacity, and the State are engaging in a pattern or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies."

The Obama administration has not only staked out its position for North Carolina, but for all states, universities and most employers in the U.S. ... The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy.
- N.C. Gov. Pat McCrory

"Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition, or privilege of employment. 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."

HB 2 took effect on March 23, 2016. It was passed and signed into law after the Charlotte, N.C., city council enacted its own civil rights ordinance which gave those who are biologically male or female, but identifying as another gender, access to the other gender's restrooms.

Several other jurisdictions were also considering similar ordinances before the state acted to prevent a "patchwork" of inconsistent laws within the state. State lawmakers claimed they were ensuring state sovereignty (and public safety) by passing the bill.

The DOJ sees things differently, claiming the law is "facially discriminatory" to state and local government employees who are transgender. The letter claimed the U.S. attorney general is seeking a court order to ensure the state's compliance with Title VII. It also demanded a response.

"Please advise the Department, therefore, no later than close of business on May 9, 2016, whether you will remedy these violations of Title VII, including by confirming that the State will not comply with or implement H.B. 2, and that it has notified employees of the State and public agencies that, consistent with federal law, they are permitted to access bathrooms and other facilities consistent with their gender identity," the letter said.

The DOJ also sent letters to North Carolina Department of Public Safety and University of North Carolina "similarly notifying them of our conclusion that they have engaged in violations of Title VII, as well as violations of Title IX and its implementing regulations, and the Violence Against Women Reauthorization Act of 2013."

That law claims "gender identity" – actual or "perceived" gender-related characteristics – must be accommodated.

Gov. McCrory issued a statement in response to the DOJ demand. In it, McCrory said the Obama administration claims "one part of House Bill 2, which requires state employees in public government buildings and students in our universities to use a restroom, locker room and shower facility that match their biological sex, is now in violation of federal law."

"The Obama administration has not only staked out its position for North Carolina, but for all states, universities and most employers in the U.S.," McCrory said. "The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy."

McCrory said the state would review the law to determine the next steps it would take. The state could lose federal funding if it does not act.

Ironically, the definitions section of Title VII in the Civil Rights Act of 1964 does not include "gender identity" as a class, but in the regulations adopted by the Equal Employment Opportunity Commission (EEOC) last year, extra-legal non-discrimination protections were extended to transgenders.

Therefore, what was not put in place by an act of Congress, the lawmaking body of the government, was granted by court interventions and administrative actions.

"Federal courts and administrative agencies have applied Title VII to discrimination against transgenders based on sex, including gender identity," the DOJ letter said.

Transgenderism is the result of the psychological disorder known as "Gender Dysphoria," in which the person is born with a particular biological sex but selects and identifies with the opposite gender.