Any chance that North Carolina and federal authorities might quickly resolve their standoff over whether the state’s House Bill 2 is discriminatory to transgender people dissolved in a trio of lawsuits on Monday.
U.S. Attorney General Loretta Lynch capped the day’s escalating legal fight when she took to a podium in Washington, D.C., to condemn the law.
“You’ve been told that this law protects vulnerable populations from harm – but that just is not the case,” Lynch said. “Instead, what this law does is inflict further indignity on a population that has already suffered far more than its fair share. This law provides no benefit to society – all it does is harm innocent Americans.”
Last week, the U.S. Department of Justice led by Lynch gave Gov. Pat McCrory until Monday to denounce the law, which was enacted in March and requires people in government buildings to use bathrooms that correspond to the sex on their birth certificates. Instead, McCrory and legislative leaders filed separate suits asking that a judge determine the law is not discriminatory.
That prompted the Justice Department to file its own lawsuit, seeking an injunction to suspend the law while a judge determines that it is illegal.
“I want to assure the people of our state and our country North Carolina has long-held traditions of ensuring equality,” McCrory said, reading a six-minute statement to state and national news media at the Executive Mansion.
McCrory sued the Justice Department in North Carolina’s eastern district of federal court, saying federal authorities made a “radical reinterpretation” of the Civil Rights Act by requiring the state to allow transgender people to use restrooms according to how they view themselves, and not according to their birth sex.
Separately on Monday, Senate leader Phil Berger and House Speaker Tim Moore sued the Justice Department in the same district, also seeking a judicial ruling that the law doesn’t violate the Civil Rights Act. McCrory, Berger and Moore are Republicans.
The governor said the Justice Department last week had not given the state enough time to respond when it set a deadline of 5 p.m. Monday to declare that House Bill 2 would not be enforced. He said he asked for a two-week delay in that deadline. But Justice Department officials countered by offering a one-week extension only if he made a public statement agreeing that the law was discriminatory.
“I could not agree with that because I do not agree with their interpretation of federal law,” McCrory said.
Lynch, however, said talks were ongoing about whether to extend the deadline. “I think it’s unfortunate that the governor’s actions curtailed that,” she said.
Lynch, who was born in Greensboro and grew up in Durham, addressed her home state.
“Instead of turning away from our neighbors, our friends, our colleagues, let us instead learn from our history and avoid repeating the mistakes of our past,” she said. “It was not so very long ago that states, including North Carolina, had signs above restrooms, water fountains and on public accommodations keeping people out based upon a distinction without a difference. We have moved beyond those dark days, but not without pain and suffering and an ongoing fight to keep moving forward. Let us write a different story this time.”
The Justice Department says HB2 violates Title VII of the Civil Rights Act, which governs employment, Title IX dealing with education and the Violence Against Women Act, which was reauthorized in 2013 to include gender identity as a protected class. McCrory’s lawsuit only addresses the Title VII employment protections, and concerns whether all state employees have the same right of access to restrooms.
Lynch said that while the Justice Department is seeking a court order blocking HB2, the department reserves the option of withholding federal funding from the North Carolina Department of Public Safety and the University of North Carolina system.
In his statement, McCrory reiterated that blame for the controversy lies with Charlotte City Council, which adopted an ordinance extending restroom use to transgender people according to their gender identity, rather than their biological sex at birth. House Bill 2 blocks that ordinance and other local anti-discrimination protections for lesbian, gay, bisexual and transgender people.
McCrory’s general counsel, Bob Stephens, said it is up to the UNC Board of Governors to decide how the university system should respond to the Justice Department’s warning, which was sent to the UNC system, McCrory and the state Public Safety Department. Lynch said the Justice Department has been in contact with the university system and is not yet at a point where federal education funds are in danger of being withheld.
The UNC board meets on Tuesday. UNC system President Margaret Spellings said Monday the system is caught in the middle of state and federal governments.
The issue of bathroom restrictions as a form of discrimination has already played out in the federal courts. The 4th Circuit Court of Appeals, which holds judicial sway over the Carolinas and four other states, ruled last month in a lawsuit filed by a Virginia transgender student that the federal government has the right to define discrimination as it sees fit.
Several legal experts say the ruling likely serves as a death knell for HB2. Campbell University law professor Greg Wallace, who describes himself as a conservative, is not among them. He described the Justice Department’s legal arguments in the case as “paper thin.”
“HB2 merely codifies, for N.C. schools and government buildings, the basic rules of bathroom, locker room, and shower access that have long existed for multiple-occupancy facilities. The Obama administration wants to change those rules,” Wallace said.
“Legislation has been introduced in Congress to add gender identity to federal non-discrimination laws. Congress has not passed that legislation. Because the Obama administration cannot enact its transgender agenda through the normal democratic process, it has resorted to bureaucratic threats.”
Brian Clarke, an employment specialist with the Charlotte School of Law, says McCrory’s lawsuit “reads more like a political press release than a legal pleading.”
Clarke, a critic of HB2, says the governor’s lawsuit sidesteps the 4th Circuit’s recent ruling, which he believes will take precedence.
“For any federal district judge, I think this conclusion is virtually inescapable,” Clarke said. “As a result, I think this lawsuit will be short-lived in the district court and is unlikely to lead to anything but a loss for Gov. McCrory.”
HB2 and the lawsuits quickly became fodder for political messages Monday.
State Attorney General Roy Cooper, who is a Democrat challenging Republican McCrory, said the governor was “pouring gas on the fire that he lit.”
“For decades, North Carolina has been a beacon in the South with great universities, technology and forward-thinking leaders,” Cooper said. “But now, the governor is putting all that and more at risk with his partisan gamesmanship.”
Republican supporters of the law have tied the Justice Department’s involvement to Democratic President Barack Obama. His White House has said he was not involved.
Greg Gordon of the McClatchy Washington Bureau, Observer researcher Maria David and staff writer Katherine Peralta contributed.