Washington — The U.S. Justice Department on Monday sued to block North Carolina from enforcing the provisions of House Bill 2 that dictate what bathrooms transgender individuals can use.
"None of us can stand by when a state enters the business of legislating identity and insist that a person pretend to be something or someone that they are not or invents a problem that does not exist as a pretext for discrimination and harassment," U.S. Attorney General Loretta Lynch said during a Monday afternoon news conference, calling House Bill 2 "state-sponsored discrimination."
McCrory, lawmakers want courts to declare HB2 doesn't discriminate In addition to Gov. Pat McCrory and the state of North Carolina, the government's lawsuit targets the University of North Carolina system.
In announcing the suit, Lynch called on imagery from the civil rights era of the 1960s, recalling a time when whites and blacks were required by law to use separate bathrooms.
"This action is about a great deal more than bathrooms," Lynch said. "This is about the dignity and respect we accord to our fellow citizens."
As with a news conference Monday morning in which he announced his own lawsuit seeking to forestall federal action, McCrory accused the Obama administration of overstepping its authority.
"Governor McCrory is appropriately seeking legal certainty to a complex issue impacting employers and students throughout the country," spokesman Josh Ellis said in a statement. "In contrast, the attorney general is using divisive rhetoric to advance the Obama administration's strategy of making laws that bypass the constitutional authority of Congress and our courts."
If federal courts do find House Bill 2 to be discriminatory, Lynch and her deputies could ask for federal funding to be withheld from the state. Billions of dollars flow from the federal government for education, law enforcement and other needs.
"We are deferring on requesting the curtailing of funding now, but we do retain that right," Lynch said.
House Speaker Tim Moore spoke with reporters before Lynch's announcement. Anticipating the federal lawsuit, Moore said that no effort to withdraw federal funds from the state would be instantaneous, and while he maintained that the state was in the right, Moore said that the courts would have the final say.
"Should a court rule that North Carolina is out of compliance, I don't think anyone is going to go off the cliff with this thing and put billions of dollars at risk," said Moore, R-Cleveland.
The UNC system, for example, received $1.4 billion in federal funds in fiscal year 2014-15. That revenue could be at risk if a federal judge decides North Carolina was willfully flouting federal law. In a letter to the Justice Department on Monday, UNC President Margaret Spellings said the 17-campus system was caught between complying with state law and obeying federal law.
"In these circumstances, the University is truly caught in the middle," Spellings said in a statement. "As the Attorney General alluded to in her press conference today, we have been in regular contact with the Department about ways to constructively resolve its inquiry into HB2 and the University’s compliance with federal civil rights laws. Even though the Justice Department has chosen to file an action in federal court, we intend to continue to engage in further discussions with them on this issue."
Senate Minority Leader Dan Blue said McCrory and the Republican leaders of the General Assembly "have backed themselves into a corner" with their defense of House Bill 2 and their defiance of the federal government.
"Republicans are essentially playing chicken with billions of dollars of education funding on the line," Blue, D-Wake, said in a statement. "This kind of destructive escalation is not a game – people’s livelihoods are on the line."
Lawmakers passed House Bill 2 in March in response to a Charlotte ordinance that would have required private and public entities to allow transgender individuals to use the bathroom of their choice. The state law goes much further by limiting state nondiscrimination policies and eliminating the right to sue in state court for employment discrimination.
Last week, the Justice Department gave the governor to the end of the day Monday to say whether he would enforce the law. McCrory asked for an extension of that timeline, a request Lynch said her department considered.
McCrory said earlier in the day that the federal government offered to hold off on its suit only if he admitted that the law was discriminatory, something he was unwilling to do.
Instead, McCrory filed his own lawsuit Monday morning, asking a federal court to declare North Carolina in compliance with the law. Later in the day, top lawmakers filed a similar, but broader lawsuit, asking the courts to exonerate North Carolina.
Vanita Gupta, who heads the Justice Department's Civil Rights Division, said federal law has long made clear that sex discrimination includes gender identity, a stance McCrory disagreed with in his court filing.
"There is nothing radical or even usual about the notion that the word 'sex' includes the concept of gender," Gupta said. "HB2 denies transgender people something that all non-transgender people enjoy and take for granted: access to restrooms consistent with their gender identity. That's sex discrimination, plain and simple."
House Bill 2 supporters argue that the Justice Department is bullying the state over a privacy issue, but Lynch said the only ones being bullied by the law are transgender people in North Carolina.
"There are any number of ways to accommodate privacy interests in a bathroom or in a changing area as long as they are equally available to all students and all employees. You cannot single out any one particular group to be treated differently," she said.
In its lawsuit, the Department of Justice asks the court to find that House Bill 2 violates federal laws against workplace discrimination as well as discrimination in educational settings. The department also says the law violates the Violence Against Women Act.
Addressing the people of North Carolina, Lynch said, "You have been told this law protects vulnerable populations from harm, but that just is not the case...This law provides no benefit to society, and all it does is harm innocent Americans."