Metro Weekly

Justice Department: HB 2 violates Civil Rights Act

Justice Department throws down gauntlet, telling North Carolina to decide whether it will continue to enforce the law

North Carolina Gov. Pat McCrory (Photo: NCDOTcommunications, via Wikimedia).
North Carolina Gov. Pat McCrory (Photo: NCDOTcommunications, via Wikimedia).

The federal government is locking horns with North Carolina’s over its anti-LGBT law. Among other provisions, it forces transgender people to use a restroom or changing facility that corresponds with their birth gender.

In a letter to Gov. Pat McCrory (R), the U.S. Justice Department said that HB 2 violates the U.S. Civil Rights Act. As a result, it could potentially cost North Carolina the up to $861 million in federal education dollars that it received last year, according to The Charlotte Observer.

According to the Justice Department, the new law violates both Title IX and Title VII, which prohibit discrimination on the basis of sex. The letter requests that state officials respond by Monday as to whether they will continue to enforce HB 2, urging them to scuttle the law.

“The State is engaging in a pattern or practice of discrimination against transgender employees and both you, 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,” Principal Deputy Assistant Attorney General Vanita Gupta wrote in the letter to McCrory.

“Title VII prohibits an employer from discriminating against an individual on the basis of sex and from otherwise resisting the full enjoyment of Title VII rights. The Supreme Court made clear in Price Waterhouse v. Hopkins that discrimination on the basis of ‘sex’ includes any differential treatment based on any ‘sex-based consideration.’ Federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity,” the letter continues.

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

The letter also cites a recent ruling by the 4th U.S. Circuit Court of Appeals in favor of a Virginia transgender student, which directed a lower court that is currently hearing the student’s lawsuit against his school’s bathroom policy to give significant deference to the U.S. Department of Education’s interpretation of Title IX. In a case out of Illinois, the Department previously found that denying transgender students equal access to facilities that match their gender identity violates Title IX’s prohibitions on sex discrimination. It is that interpretation, as embraced by the 4th Circuit, that many legal scholars believe will be used to overturn HB 2 in the courts.

In response to the letter, the American Civil Liberties Union (ACLU), along with the ACLU of North Carolina and Lambda Legal, released a statement calling upon lawmakers to repeal HB 2 in its entirety.

“It is now clearer than ever that this discriminatory law violates civil rights protections and jeopardizes billions of dollars in federal funds for North Carolina,” the statement reads. “Governor McCrory and the legislators who forced through HB 2 in a single day were warned about these dire consequences, but they ignored the law and the North Carolinians it would harm and passed the bill anyway. The only way to reverse the ongoing damage HB 2 is causing to North Carolina’s people, economy and reputation is a full repeal.”

But House Speaker Tim Moore (R-Kings Mountain), one of the law’s chief proponents, indicated that he was not budging from his support of the new law. Instead, Moore called the Justice Department’s letter “a huge overreach by the federal government,” insisting it was motivated by politics and an “ultra-liberal agenda” rather than based in constitutional law.

Still, other legal scholars praised the federal government’s actions.

“We applaud the Justice Department for standing up for all Americans, including the most vulnerable, by saying North Carolina’s HB 2 violates the Civil Rights Act,” Caroline Fredrickson, president of the American Constitution Society for Law and Policy, said in a statement. “After many equal rights victories, HB 2 is nothing more than the latest assault on LGBT rights. The discriminatory law belong in the dustbin of history.”

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