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Pat McCrory Sues Obama Administration Over Anti-Trans Law

Pat McCrory

Facing a federal government about to crack down, Gov. Pat McCrory is suing to stop them, arguing there’s no such thing as federal protections for transgender people.

At a press conference at the state capitol in Raleigh today, McCrory repeated his earlier claims that he and his conservative colleagues in the legislature did not "seek out" this issue, placing the blame squarely on members of the Charlotte City Council, which approved a trans-inclusive public accommodations ordinance in February. The statewide law was drafted explicitly as a response to these protections, which McCrory has consistently called "government overreach."

"This caused major privacy concerns about males entering female facilities," McCrory told reporters at the capitol today. "And about females entering male facilities."

While saying that he "wholeheartedly" supports "fighting discrimination," McCrory falsely claimed that the Obama administration is "attempting to rewrite the law… [to] set bathroom policies for private employers across the country."

"This is not just a North Carolina issue, this is now a national issue," McCrory said today. "And an issue which imposes a new law on every private sector business in America with more than 15 employees."

The governor is asking for the court to clarify federal law because it disagrees with how the Justice Department has interpreted it, specifically regarding the state's controversial anti-LGBT law known as House Bill 2. In addition to rescinding LGBT-inclusive nondiscrimination ordinances statewide, HB 2 bars transgender people from using restrooms and locker rooms that correspond with their gender identity, if those facilities are located in government buildings or public spaces. The sweeping law must be enforced at state schools, including at all campuses of the University of North Carolina, which has struggled with how to enforce the policy. 

McCrory faced a deadline today from the Justice Department, which told North Carolina that its new discrimination law violates Title IX protections against discrimination based on gender — and that, they said, includes transgender people. If the law, passed in a 24-hour special session on March 23, wasn’t made null today then the state faced loss of potentially billions in federal dollars tied to Title VII of the Civil Rights Act of 1964. 

“Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition or privilege of employment,” the DOJ wrote in its letter informing McCrory that HB 2 violates federal law. “Denying such access to transgender individuals, whose gender identity is different from the gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII.”

North Carolina's chief legal counsel, Bob Stephens, confirmed during today's press conference that the state's lawsuit, seeking declaratory judgment, "is our response to that deadline" set by the DOJ. "So we’ve met the deadline and now we’ll go forward," he added.  

The lawsuit blasts the United States, in particular the federal Department of Justice, led by Attorney General Loretta Lynch, “for their radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered state employees.”

Mischaracterizing the law as a “common sense privacy policy,” the complaint admits that House Bill 2 does not grant citizens access to public restrooms based on their gender identity. The suit continues: 

“The Department [of Justice] contends that North Carolina’s common sense privacy policy constitutes a pattern or practice of discriminating against transgender employees in the terms and conditions of their employment because it does not give employees an unfettered right to use the bathroom or changing facility of their choice based on gender identity. The Department’s position is a baseless and blatant overreach.”

North Carolina’s complaint contends that there is no legal precedent affirming that transgender individuals are protected by federal employment law, but relies upon cases decided up to 16 years ago, notably failing to mention the numerous pro-trans equality rulings handed down in federal courts under the Obama administration. 

At today's press conference, Stephens told reporters that the DOJ is misunderstanding federal civil rights law, and argued that transgender people are not protected under Title VII. “The class of people that the Justice Department are referring to, are not a protected class,” Stephens told reporters, speaking about transgender employees who are now barred from using public restrooms that match their gender identity.  

The recent Gavin Grimm case out of Virginia certainly won’t help North Carolina’s governor make his argument that existing federal law doesn’t protect transgender people from discrimination. The Fourth Circuit, which also has jurisdiction over North Carolina, already ruled that Grimm, a high school student, can’t be ordered to use a special bathroom because it would be discriminatory under Title IX of the Education Amendments of 1972

Stephens directly addressed the Grimm ruling when asked by a reporter at today's press conference. Because the defendants have appealed the latest ruling — requesting an en banc hearing by the full Fourth Circuit — North Carolina's chief legal counsel claimed that prior trans-affirming rulings in the case are currently unenforceable, and therefore do not apply in North Carolina until the case is fully resolved. 

McCrory is facing a tough reelection fight against his own attorney general, Roy Cooper, who has refused to defend HB 2 in court. Plus, McCrory has faced national backlash over the law, even from his party’s presumptive nominee for president, Donald Trump, who said there was nothing wrong with the way things had worked before McCrory’s ban went into place. 

And it’s true, there’s not a single case of a transgender person acting as a child predator in any bathroom in the country — a myth being put forward by Republicans to get these so-called bathroom bills passed.

In an interview with Fox News over the weekend, McCrory himself admitted that there has never been a reported instance of a sexual predator exploiting trans-inclusive protections to assault people in a restroom. 

Numerous businesses have also protested the law, which includes a ban on anti-discrimination ordinances anywhere in the state from including sexual orientation or gender identity as protected classes.

Watch McCrory's statement at Monday's press conference below, followed by a video report on the latest developments. 

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