A political showdown between North Carolina and the federal government loomed Thursday as Republican state leaders vowed to defy the U.S. Justice Department’s deadline to repeal the state’s contentious new bathroom law.
The Justice Department notified Gov. Pat McCrory in a letter Wednesday that the state’s House Bill 2, which restricts transgender bathroom access and has become a focus in the LGBT rights fight, violates sections of the 1964 Civil Rights Act. It gave the state until Monday to “remedy” the violations.
On Thursday, North Carolina House Speaker Tim Moore said legislators would not meet the federal government’s deadline.
“We will take no action by Monday,” Moore told reporters in a video broadcast by the Raleigh News & Observer. “That deadline will come and go. Obviously, we don’t ever want to lose any money, but we’re not going to get bullied by the Obama administration to take action prior to Monday’s date. That’s not how this works.”
In a statement, McCrory said he would review the letter to determine the state’s next steps. “The Obama administration has not only staked out its position for North Carolina, but for all states, universities and most employers in the U.S.,” the governor said. “The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy.”
Other Republican leaders also reacted strongly against the letter. Phil Berger, president pro tempore of the North Carolina Senate, called the letter “a gross overreach by the Obama Justice Department that deserves to be struck down in federal court.”
If the state refuses to repeal or amend the legislation, the Justice Department has several options, legal experts say. The civil rights division can apply for a federal court order to require compliance, putting the case in the hands of a federal judge. It could also start initiating action to limit the distribution of federal funds. Last year, the Department of Education gave North Carolina $4.3 billion for public kindergartens, schools and colleges.
“This sets up a battle between the state and the federal government,” said Jane R. Wettach, a professor of law at Duke University, a private university in Durham, N.C. “Our state officials are saying that this is federal government overreach, but the federal government has the power, certainly over federal funds.”
There is no recent precedent for the federal government threatening to withdraw public education funds over a state law, although federal agencies have threatened to exert sanctions on some school districts to change their transgender restroom policies.
In November, federal education officials found that a high school district in Palatine, Ill., violated Title IX antidiscrimination laws by not allowing a transgender student who identifies as a girl full access to the girls’ locker room. The school eventually backed down.
Yet on Wednesday, a group of families filed a federal lawsuit against the Department of Education, the Justice Department and the school district, alleging that their actions “trample students’ privacy” rights and create an “intimidating and hostile environment” for female students.
The North Carolina standoff has echoes of the federal government’s battle with states over desegregation more than half a century ago, Wettach said. For about 10 years, school systems across the South refused to follow the landmark 1954 Brown vs. Board of Education court order that they desegregate — until the federal government threatened to cut off education funds.
“There is a precedent for the federal government holding the purse strings and saying, ‘Unless you follow our interpretation of civil rights, you won’t get your money,’” she said.
Justice Department officials have yet to comment on whether they plan to send letters to other Southern states that have passed similarly controversial legislation. Last month, Mississippi Gov. Phil Bryant signed a law that, among other things, permits businesses and faith-based groups to deny services to people based on their gender identity or sexual orientation. The law, which would also allow employers and schools to refuse to allow transgender people to use the restrooms or locker rooms of their choice, goes into effect July 1.
The North Carolina conflict initially began as a showdown between city and state. In February, the state’s largest city, Charlotte, passed an ordinance that expanded nondiscrimination protections to sexual orientation and gender identity and allowed people to choose restrooms according to the gender with which they identify.
Before the city’s ordinance went into effect, however, Republicans rushed through a law that orders schools and public agencies to require multiple-occupancy restrooms to be used by people based on the sex listed on their birth certificate. The law, which was signed by McCrory in March, also prevents cities from extending anti-discrimination laws to lesbian, gay, bisexual and transgender people and from passing any increase in the minimum wage.
In a letter to McCrory, Vanita Gupta, principal deputy assistant attorney general for the civil rights division, stated that HB2 violates Title VII of the Civil Rights Act, which prohibits employers from discriminating, as well as Title IX of the 1972 Education Amendments, which bars discrimination in education based on sex.
“Specifically, the state is engaging in a pattern or practice of discrimination against transgender state 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,” the letter says.
To “remedy” the violations, the Justice Department required the state to confirm that it will not implement HB2 and to notify state and public employees that they can access bathrooms that correspond to their gender identity.
The Justice Department also sent letters to the University of North Carolina, citing an alleged violation of Title IX, as well as to the state’s secretary of public safety, citing an alleged violation of the 2013 Violence Against Women Reauthorization Act.
On Thursday, Democratic legislators urged their counterparts in the Republican-dominated General Assembly to repeal the law by Monday.
“#HB2 became law in less than 12 hours,” Cecil Brockman, a Democratic state representative, said on Twitter. “5 days should be more than enough time to decide how to clean up after it.”
State officials should not be too surprised by the intervention. In December 2014, then-Atty. Gen. Eric H. Holder Jr. instructed the Justice Department to include gender identity, including transgender status, in Title VII’s prohibition against sex discrimination.
In her letter, Gupta noted that the Equal Employment Opportunity Commission in 2015 held that equal access to restrooms is a “significant, basic condition of employment” and that denying transgender individuals access to a restroom consistent with their gender identity constituted a form of discrimination.
While McCrory has previously said he would roll back some provisions of the law, he has been unwilling to reconsider the section requiring transgender people to use public bathrooms corresponding to the sex on their birth certificate — a measure he describes as “common sense.”
A recent poll by RABA Research, a bipartisan polling company, found that half of North Carolina voters disapprove of the new law. When asked, “Do you approve or disapprove of HB2 — the state’s new anti-transgender law?” 50% disapproved and 35% approved.
Jarvie is a special correspondent.