Employment Law Daily North Carolina, DOJ battle to resolve the transgender bathroom question
Wednesday, May 11, 2016

North Carolina, DOJ battle to resolve the transgender bathroom question

By Pamela Wolf, J.D. North Carolina has upped the ante in the battle over transgender bathroom use. On May 9, Governor Pat McCrory filed a declaratory judgment lawsuit asking a federal district court in the Eastern District of North Carolina to settle whether or not the state’s new law limiting transgender individuals to bathrooms and other facilities consistent with the gender stated on their birth certificates is lawful. The Department of Justice quickly followed up with its own lawsuit. Under H.B. 2, individuals who identify and dress as female must nonetheless use male restrooms and locker rooms—and vice versa. The bill was so controversial that the state’s top lawyer, Attorney General Roy Cooper, called it “a national embarrassment” and said it would set North Carolina’s economy back if it remained on the books. He also vowed that he would not defend the constitutionality of H.B. 2, which he said “puts discrimination into law” and obviously targets the LGBT community. Notably, the complaint for declaratory relief in McCrory v. U.S.A is signed by private attorneys and the General Counsel for the Governor’s Office. DOJ takes action. The move comes in response to May 4 letters sent by the Department of Justice to the governor, Secretary of Public Safety Frank Perry, and University of North Carolina System President Margaret Spellings, warning, among other things, that H.B. 2 violates Titles VII, IX, and the Violence Against Women Reorganization Act of 2013 (VAWA) (See DOJ takes aim at controversial transgender bathroom law, Employment Law Daily, May 5, 2016). The DOJ asked that the alleged violations be remedied and that the governor and state agencies respond regarding those remedies by May 9. Slowing it down. McCrory said he filed the declaratory judgment complaint because his administration requested additional time to respond, but DOJ officials refused to grant the request unless the state agreed to what he called “unrealistic terms.” “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 on May 9. “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.” McCrory also said he filed the lawsuit “to ensure that North Carolina continues to receive federal funding until the courts resolve this issue.” Is H.B. 2 discriminatory or not? The Justice Department contends that H.B. 2 is facially discriminatory under Title VII based on sex because it treats transgender employees whose gender identity departs from their “biological sex” (as H.B. 2 defines it—the sex stated on the person’s birth certificate) differently from similarly situated nontransgender employees. “Under H.B. 2, nontransgender state employees may access restrooms and changing facilities that are consistent with their gender identity in public buildings, while transgender state employees may not,” wrote Principal Deputy Assistant Attorney General Vanita Gupta. But, according the governor’s complaint, “the overwhelming weight of authority has refused to expand Title VII protections to transgender status absent Congressional action.” The state is purportedly not violating Title VII because “North Carolina does not treat transgender employees differently from nontransgender employees. 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 transgendered status.” The complaint also asserts that the state is compliant with the VAWA. Even if the VAWA includes gender identity as a protected class, “North Carolina law is not discriminatory because it allows accommodations based on special circumstances, including but not limited to transgender individuals.” McCrory’s complaint asks the court to declare that the plaintiffs are not violating Title VII or the VAWA by following North Carolina law on bathroom and changing facilities for state employees. It also seeks, among other things, a declaration that the plaintiffs are not violating Title VII or the VAWA “by following state law allowing accommodations under special circumstances for employees who need exceptions to state policy regarding bathroom and changing facility use by state employees.” DOJ makes good on its threat. The Justice Department followed through on its threat of court action also on May 9. In its complaint, the DOJ noted that H.B. 2 was enacted directly in response to a Charlotte ordinance that would have permitted transgender individuals to use facilities corresponding to their gender identity by prohibiting discrimination based on “gender identity” in places of public accommodation. McCrory and North Carolina lawmakers, according to the DOJ, “made explicit public statements indicating that they proposed, passed, and signed H.B. 2 to overturn the Charlotte Ordinance and to ensure transgender individuals would not be permitted to access bathrooms and other facilities consistent with their gender identity in schools and other public agencies.” Even before the Charlotte ordinance was passed, McCrory told members of the Charlotte City Council that the legislation “could ‘create major public safety issues by putting citizens in possible danger from deviant actions by individuals taking improper advantage of a bad policy.’” The DOJ also noted that introducing H.B. 2, State Representative Dan Bishop remarked, “[a] small group of far-out progressives should not presume to decide for us all that a cross-dresser’s liberty to express his gender nonconformity trumps the right of women and girls to peace of mind.” As promised, on behalf of the United States, the federal agency is asking the court to declare that H.B. 2 violates Titles VII and IX and the VAWA, and to preliminarily and permanently enjoin further violations of federal law. The governor filed his lawsuit in the Eastern District of North Carolina; the case is No. 5:16-cv-00238-BO. The Justice Department filed its lawsuit in the Middle District of North Carolina; the case is No. 1:16-cv-00425.

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