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Federal Government, North Carolina, File Competing Lawsuits Over State’s ‘Bathroom Bill’

Gender Neutral Restroom Sign

The Governor of North Carolina and the Obama Justice Department have filed cross lawsuits in the dispute related to North Carolina’s House Bill 2 which, among other things, purports to restrict transgender individuals to using the bathroom corresponding to their genetic gender rather than the gender they identify with:

RALEIGH, N.C. — The nation’s clash over the rights of transgender people escalated sharply on Monday as Gov. Pat McCrory of North Carolina and the Justice Department sued each other, testing the boundaries of federal civil rights laws in a dispute over public restroom access.

Days after the Justice Department demanded that North Carolina back away from a new state law restricting access to restrooms, locker rooms and changing rooms, Mr. McCrory, in a lawsuit filed in Federal District Court here, accused the department of “a baseless and blatant overreach” stemming from a “radical reinterpretation” of the Civil Rights Act of 1964. The state General Assembly’s Republican leaders filed a similar suit against the Justice Department.

“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions,” Mr. McCrory, a Republican who is running for re-election this year, told reporters here. “Right now, the Obama administration is bypassing Congress by attempting to rewrite the law.”

Hours later, Attorney General Loretta Lynch said no clarification was needed, and she asserted that federal civil rights laws barring discrimination on the basis of sex prohibit laws like the one in North Carolina.

“They created state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security,” she said at a news conference in Washington. “None of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something or someone that they are not.”

Straying from her usual understated, lawyerly tone, Ms. Lynch, a North Carolina native, grew impassioned as she likened the fight to earlier battles over Jim Crow laws and laws against same-sex marriage.

“This is not the first time that we have seen discriminatory responses to historic moments of progress,” she said. Addressing transgender people, she added: “We see you. We stand with you, and we will do everything we can to protect you going forward.”

The Justice Department’s lawsuit, filed in a different federal court in the state, argued that North Carolina’s law, which prohibits people from using public restrooms that do not correspond with the gender listed on their birth certificates, compels “public agencies to follow a facially discriminatory policy.”

Even before the Justice Department challenged the law in court, the federal government had been examining how it could pressure North Carolina. Last month, federal agencies acknowledged that they were studying whether the law affected North Carolina’s eligibility for aid from Washington that helps pay for schools, highways and housing.

Mr. McCrory’s suit was assigned to Judge Terrence W. Boyle, an appointee of President George W. Bush and a former aide to Jesse Helms, the longtime conservative Republican senator from North Carolina. The Federal District Court for the Middle District of North Carolina, where the Justice Department filed its case, did not immediately assign a judge to handle the proceedings there.

The law has drawn scorn from businesses like PayPal and the N.B.A., has led to calls for a boycott of North Carolina, and has prompted some companies and entertainers to reverse plans to do business in the state. It even found its way into the presidential race, becoming a frequent theme of the final weeks of the campaign of Senator Ted Cruz, who said, “Grown adult men, strangers, should not be alone in a bathroom with little girls.”

(…)

Mr. McCrory’s lawsuit left little doubt about his view of a Justice Department that Republicans here regard with open contempt. The department, the lawsuit said, was engaged in “an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the courts.”

Mr. McCrory and other Republicans said the law’s bathroom access provision was a bulwark against sexual assault, as Mr. Cruz suggested. But critics, many of whom have demanded a full repeal, said that transgender people had been using the bathroom of their choice for years without others noticing, and that it had not been a problem. In fact, the risk of assault, they said, would be to a person who appears to be a woman and identifies as a woman and is forced to use the men’s room.

In a letter to Mr. McCrory last week, Vanita Gupta, the Justice Department’s top civil rights official, said the North Carolina statute violated Title VII of the Civil Rights Act, which prohibits sex discrimination. In the Justice Department suit, which named the University of North Carolina as a defendant, the federal government also alleged violation of Title IX of the Education Amendments of 1972.

The first order of business will most likely be determining precisely how these two cases will be consolidated given that they raise nearly identical issues of fact and law and deal with basically the same facts, witnesses, and legal issues and would most likely be handled by the same attorneys. That issue is slightly complicated by the fact that the two lawsuits were filed in different Federal Court Districts. In the event that the parties are unable to reach an agreement on the matter that is accepted by both Courts, though, venue for the consolidated cases will likely be decided by a special panel within the Federal Court System created for the purpose of resolving these types of issues regarding multi-district litigation. It’s worth noting in this respect that there is also a lawsuit filed by citizens opposed to House Bill 2 currently pending in the Middle District of North Carolina, although the fact that it was filed last week likely means that very little action has taken place in the matter. In any case, once that issue is resolved the case will move forward into what is largely uncharted legal territory, namely the extent to which existing Federal anti-discrimination laws dealing with gender apply to discrimination based on sexual orientation or gender identity.

As things stand, the answer to that question remains up in the air.

Last year, the Department of Education took the position that a school district in the Chicago area violated Federal laws when it denied a transgender student access to the girls bathroom and showers on the ground that the individual in question was still biologically and physically male and that doing so would make other students feel uncomfortable put their safety at issue. In the past, though, Courts have not agreed on whether or not transgender students are covered under existing law.  and unsafe. In reality, the state of the law in this area is nearly as clear-cut as the Obama Administration contends it is as Federal Courts in Virginia and Pennsylvania have ruled in the past that current Federal laws such as Title IX may not apply to transgender students at all, meaning that Congress would have to change the law for existing civil rights rights laws to apply to transgender Americans, something that doesn’t seem very likely at the moment. More recently, rhe Fourth Circuit Court of Appeals ruled that a transgender teen who whose born female can proceed with a lawsuit against their local school board over the issue of bathroom access in a ruling that largely accepted the legal arguments that the Department of Education made in the Chicago case. These are just a handful of examples of courts who have ruled on the matter, though, and cannot be said to completely definitive on the legal issues at stake in these cases. Most likely, we’re in for a long process of litigation and appeals before this issue is resolved unless economic pressure and political developments lead the North Carolina legislature to reconsider the bill it passed in haste last month. In any case, these will be worth keeping an eye on.

In any case here is Governor McCrory’s lawsuit:

McCrory Et Al v. United States by Doug Mataconis

And here is the Federal Government’s lawsuit:

U.S. v North Carolina by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    The right to discriminate against anyone not exactly like you is the keystone of Republicanism.
    Their record proves they are deeply unserious about the size of government, fiscal responsibility, or foreign policy.
    Xenophobia, on the other hand, is a constant.

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  2. HarvardLaw92 says:

    I’m pretty sure that the relevant precedent here is going to be Grimm V. Gloucester County School Board, since this matter will without a doubt end up at the 4th Circuit – regardless of the outcome at the district level.

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  3. @HarvardLaw92:

    Grimm would certainly seem to be controlling here, although it’s worth noting that the Court there was only ruling on the question of whether Title IX of the 1972 Education Act applied to transgender students. These cases also deal with Title VII of the CRA of 1964 , although I imagine the outcome would be the same.

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  4. Lit3Bolt says:

    @Doug Mataconis:

    Wouldn’t lumping all transgender people into a brand new sexless, genderless category be reaching a bit on Title IX?

    Title IX states “no discrimination based on sex.” Therefore, if Title IX did not apply to transgender students, you are saying in effect transgender people belong to neither sex.

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  5. jd says:

    @Lit3Bolt: “you are saying in effect transgender people belong to neither sex”
    Some transgender people are non-binary, feeling that they do not belong in either of the gender “boxes” into which we try to fit them.
    Title IX isn’t meant to imply that you have to fit into one of those boxes. The intent of anti-sex discrimination law is that we treat all the same regardless of sex.

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  6. HarvardLaw92 says:

    @Doug Mataconis:

    Agreed. I don’t think it’s going to be a stretch for the 4th circuit to find that, given its ruling in Grimm, that Title VII is equally implicated with respect to transgendered individuals. The ruling will, as far as I can see, almost certainly invoke both statutes as applicable to the particular situation of each named respondent.

    The suit implicates not only McCrory in his official capacity, but also the NC Department of Public Safety, the University of North Carolina and the Board of Governors of the same. She wheeled out the shotgun with this one.

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  7. stonetools says:

    It would seem this would be a good time for Congress to pass carefully considered and enlightened federal legislation clarifying the rights of all concerned in this new era…
    Heh, I amuse myself.

    The good thing is that when this gets to the Supreme Court, there will most likely be a liberal sitting in Scalia’s seat and the rights of trans-gendered people won’t be hanging on whether Kennedy feels they have the requisite “dignity”.
    The way Loretta Lynch is going, she might just be that new liberal…

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  8. C. Clavin says:

    @HarvardLaw92:
    Stroke of genius including UNC in the suit…they are probably mostly on the side of the feds…divide and conquer.

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  9. J-Dub says:

    @HarvardLaw92:

    She wheeled out the shotgun with this one

    I think you wheel out a cannon. I’ve never seen wheels on a shotgun before.

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  10. C. Clavin says:

    OT that I cannot ignore….
    Trump selects a white nationalist delegate…but his campaign is not racist.

    William Daniel Johnson, the leader of the white nationalist American Freedom Party, was selected as a delegate in California on Donald Trump’s slate. Johnson alleged that he disclosed details about his political beliefs in the application to be the delegate.

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  11. HarvardLaw92 says:

    @J-Dub:

    Eh, maybe :-)

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  12. @HarvardLaw92:

    The question at least initially will be what happens at the District Court level. Apparently, the Judge to whom the McCrory case was assigned is a conservative Republican appointed by Bush 43. I’m not sure who the Federal Government’s case has been assigned to. Of course, right now those cases are currently pending in different districts but the assumption seems to be that they will be consolidated at some point.

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  13. HarvardLaw92 says:

    @Doug Mataconis:

    The cases are IMO almost certain to be consolidated for trial, which makes it a question of which district court judge eventually gets assigned. That said, I feel certain that the matter will be appealed to the 4th Circuit regardless of the outcome. As far as I can tell NC’s AG isn’t involved in the litigation, and McCrory is just about enough of a moron to keep trying to beat a dead horse across the finish line. If he doesn’t, the legislature will. They’re certifiably insane.

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  14. @HarvardLaw92:

    You are correct that the AG is not involved in this litigation, McCrory apparently hired outside counsel to file this suit. I agree it’s destined for the 4th Circuit

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  15. Tyrell says:

    One solution would be to form an independent committee and let them come up with a plan that everyone can live with or be happy with.
    There are bigger things to work on: tax reform.

    “Trailer for sale or rent, rooms to let 50 cent
    I’m a man of means by no means
    King of the road !” (the master Roger Miller)

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  16. stonetools says:

    I talked to a colleague from North Carolina and he outlined two steps to ending this:

    1. Voting out the governor, who is up for re-election this year.

    2. Redistricting in 2020 so that they can elect a sensible legislature who can abolish this law. This time the Democrats have the business community behind them. Said community is royally p!ssed.
    BTW, I wonder just how you enforce the law? “I’m sorry, you can enter our men’s room until you show your birth certificate”. Man, I doubt that’s going to fly.

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  17. steve says:

    ““I’m sorry, you can enter our men’s room until you show your birth certificate”. ”

    All part of the plan to keep Obama out of NC bathrooms. Devious group down there.

    Steve

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  18. Just 'nutha ig'rant cracker says:

    @Tyrell: Your suggestion implies that the solution would somehow completely please the guys at the diner you go to for coffee and transgender individuals who would actually be affected by the law. Color me skeptical.

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  19. James Pearce says:

    @Doug Mataconis: @HarvardLaw92: After the 4th circuit, is it “Next stop, the Supreme Ccourt?”

    @stonetools:

    BTW, I wonder just how you enforce the law? “I’m sorry, you can enter our men’s room until you show your birth certificate”.

    I suspect most businesses would shrug when it comes to enforcement. This law really is for all the school districts either run by assholes or harried by assholes on the PTA.

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  20. James Pearce says:

    Off topic, but you guys have to check out this lawsuit.

    The set-up. On the eve of mischievously awarding their delegates to Ted Cruz, the Colorado Republican Party tweeted out “We did it! #NeverTrump.”

    Now that Trump is the presumptive nominee, they’re suing…well, somebody…for “hacking” into their Twitter account to send the very same message that they just sent with their shenanigans.

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  21. HarvardLaw92 says:

    @James Pearce:

    After the 4th circuit, is it “Next stop, the Supreme Ccourt?”

    Difficult to say. McCrory is up for reelection in November, and this matter will move at the speed of the federal judiciary – which is to say that it’s doubtful even the district level proceedings will have been finalized before the election, much less any appellate action.

    The short version is – it depends on whether McCrory gets reelected, and is therefore in a position to continue. Conceivably, he could lose to Roy Cooper (the current AG), and if that were to happen there is little doubt that Cooper would move to amicably settle the action with all due haste.

    Assuming the status quo remains after November, and NC loses at the appellate level (which IMO is 99% certain), it could seek en banc review (which is a long shot) or it could seek certiorari at SCOTUS (which is also somewhat of a long shot, IMO, albeit less of one that the likelihood of an affirmative grant of en banc. It could also nurse its wounds and withdraw, although that IMO is unlikely. Either way, pursuing this all the way through (presuming cert were to be granted) is likely to be a two to three year road.

    This area of the law is so relatively new (from the perspective of transgender persons anyway) that there is no circuit split of which I’m aware to motivate SCOTUS to inject itself into the fray. Indeed, the appellate ruling which is likely to be controlling here (Grimm v. Gloucester County School Board) is less than one month old. It’s largely unexplored territory, but it’s pretty clear to me that up through the appellate level anyway, NC is destined to lose. Where we go from there is anybody’s guess.

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  22. C. Clavin says:

    @Tyrell:

    One solution would be to form an independent committee

    You’re going to eliminate Republican xenophobia with an independent committee?
    hehehe

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