Obama administration says HB2 violates federal civil rights laws

Posted May 4, 2016
Updated May 5, 2016

— North Carolina's controversial House Bill 2 violates federal civil rights laws by preventing transgender state workers from using the restrooms and locker rooms of their choice, the U.S. Justice Department told Gov. Pat McCrory on Wednesday.

In a letter to McCrory, Deputy Assistant Attorney General Vanita Gupta gave McCrory until next Monday to "remedy" the violations associated with House Bill 2. In essence, the federal government wants the state to say it will not enforce the measure.

"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 reads.

Read the letter

The letter goes on to say the University of North Carolina has been notified that, by enforcing the law, it could be violating Title IX of the Education Amendments of 1972, a finding that could threaten federal funding for the UNC system.

Justice Department officials would not speak for attribution about the letter, but they did say that the department hopes the state will come into voluntary compliance with federal law. Officials also said the department has a variety of tools at its disposal if the state chooses to keep House Bill 2 in place.

"This is one interpretation by one agency," McCrory told members of the North Carolina Chamber on Wednesday evening, saying it was too early to say how the state would respond.

UNC System President Margaret Spellings issued a statement saying that her office was reviewing the Justice Department's letter and would consult with McCrory and lawmakers.

A separate letter sent to Secretary of Public Safety Frank Perry states that the department, as a recipient of federal funding from the Office on Violence Against Women,is in violation of the non-discrimination provision of the Violence Against Women Reauthorization Act of 2013 if it complies with House Bill 2.

House Speaker Tim Moore said he was disappointed and frustrated by the administration's letter.

Read the DOJ letter to UNC

"In lieu of going through the normal legislative process, the Obama administration has once again tried to issue an edict from the Civil Rights Division to send down to the states," said Moore, R-Cleveland.

He said the administration is setting a "dangerous precedent" by upsetting normal expectations of privacy.

Lawmakers passed House Bill 2 in March as a response to a Charlotte ordinance allowing transgender individuals to use the restroom of their choice in public accommodations. Although the bill overturned that local measure, it went further, setting limits on what kind of nondiscrimination measures local governments can enforce and wiping away the ability for workers to sue for employment discrimination in North Carolina courts.

Although he initially balked at calling lawmakers back to town for the special session to draft House Bill 2, McCrory, a Republican, signed it the same night it was passed.

McCrory continued to blame the Charlotte City Council for sparking the firestorm and LGBT advocates for fanning the flames in recent weeks. Like Moore, he said the Justice Department's stance amounts to federal overreach, telling the N.C. Chamber members that no government should be the "bathroom police" for private businesses.

"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.," he said in a separate statement. "The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy."

Critics of the law hailed the Justice Department's action.

"The letter confirms what we've already known – that HB2 is deeply discriminatory, violates federal civil rights law and needs to be repealed as soon as possible," Equality NC Executive Director Chris Sgro said in a statement.

Sgro was appointed to an open seat in the state House after House Bill 2 became law.

"We've already lost $500 million in economic impact, and now we are violating federal civil rights law and risking Title IX funding. This is a travesty and an embarrassment for North Carolina. There is a repeal bill filed in the House, and it should be considered immediately," he said.

Wake County authorities have said enforcing the bathroom provision is a very low priority for law enforcement, noting that the law doesn't spell out any penalties for people caught using the wrong bathroom.

Moore wouldn't comment on what the state might do in reaction to the Justice Department letter, saying that he first wanted to consult with McCrory and Senate President Pro Tem Phil Berger. Asked what the next steps in reaction to the DOJ letter might be, McCrory said, "I don't know," adding that lawyers for his administration were reviewing it.

"We think it's a huge overreach by the federal government, and we take great exception to it," Moore said.

The Justice Department's letter more than likely sets up a showdown in the federal courts. The law has already been challenged by citizen plaintiffs, but a direct legal confrontation between the state and federal governments could have wide-ranging consequences and, perhaps, be argued more quickly.

"This is a gross overreach by the Obama Justice Department that deserves to be struck down in federal court," Berger, R-Rockingham, said in a statement.

"H.B. 2, which took effect on March 23, 2016, is facially discriminatory against transgender employees on the basis of sex because it treats transgender employees, whose gender identity does not match their 'biological sex,' as defined by H.B. 2, differently from similarly situated non-transgender employees," Gupta wrote for the Justice Department. "Under H.B. 2, non-transgender state employees may access restrooms and changing facilities that are consistent with their gender identity in public buildings, while transgender state employees may not."

House Bill 2 has become an issue in many political campaigns, including McCrory's re-election effort.

"Enough is enough," Attorney General Roy Cooper, McCrory's Democratic rival, said in a statement. "It's time for the Governor to put our schools and economy first and work to repeal this devastating law,"

Other state officials also weighed in on the Justice Department's action.

"To use our children and their educational futures as pawns to advance an agenda that will ultimately open those same children up to exploitation at the hands of sexual predators is, by far, the sickest example of the depths the Obama Administration will stoop to fundamentally transform our nation," Lt. Gov. Dan Forest said in a statement.


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  • Vince DiSena Jun 28, 2016
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    Obama violates the constitution

  • Pat Trisha May 7, 2016
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    "In a letter to McCrory, Deputy Assistant Attorney General Vanita Gupta gave McCrory until next Monday to "remedy" the violations . . . "

    Vanita. Uhmmm. Now is that a boy or girl's name?

  • Mark Cahall May 5, 2016
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    View quoted thread

    Your intelligence is obvious and I'm sure you have tremendous abilities, but you can't be everywhere all of the time. Even for your own children.

    Safeguards need to be in place for the vulnerable,
    not the capable.

    And even with your capabilities, if speed limits were thrown out you would be in danger driving, not from what you do, but from what others do.

    It's unfair to expect little girls to have to be on guard every second they're in a locker room just in case a man with the legal right to so can walk in at any second.

    What could a little girl do to avoid being seen naked by a man while she's in the shower when he walks in?

    Run past him desperately trying to cover herself with her hands?

    Why didn't Roy Cooper, a husband and father of three girls, at least acknowledge the obvious dangers the Charlotte Ordinance enabled and call for it's repeal?

    Because he hopes the controversy helps him politically, and for that he should be ashamed

  • Mark Cahall May 5, 2016
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    Funny you should say "zero risk". I was thinking about that earlier in terms of cybersecurity and Charlotte.

    A main tenant of cybersecurity is that no system can ever be considered 100% secure. There is no "zero risk". Even farther is that every system can be considered as compromised in some way.

    One cannot eliminate all vulnerabilities, but you must mitigate as many as possible.

    And also, one must look at a system as an attacker would. What would they attack? What are the weak links?

    And basically, when I looked at the wording of the Charlotte Ordinance and the definitions of "gender identity" and "gender expression", red flags of vulnerabilities were flying up all pver the place

    It exposes potential victims in numerous unnecessary ways. It should never have been implemented and

    I can only conclude that I'm not the only one who can see the obvious dangers, including Democrats that enacted it. = Purely dirty political motives by Dems

  • Susan Eaton May 5, 2016
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    What you seem to underestimate is my intelligence and my abilities. Whilst I appreciate your concern, I must respectfully ask you to acknowledge that life cannot and does not come with "zero risk" ever, that I and other women have the intelligence and common sense ability to recognize and avoid many but not all dangerous situations just as men cannot avoid all dangerous situations, that women in general and specifically I am not helpless nor hapless, and that whilst a man may typically be physically stronger, that doesn't make men smarter or cleverer than women. As such, I and women as a whole can be as important in protecting men as vice versa.

  • Mark Cahall May 5, 2016
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    Susan, I'm sure you're a great mom and would absolutely protect your children and would never want any children to be harmed.

    Throughout history men have had to protect women, it's in our nature to do so [well, most, obviously not all].

    And if you pictured yourself alone in an unfriendly area, then approached by an unfriendly big man, I think you can imagine that a woman is in general not able to physically overpower a man. That's just genetics, physiology. So the odds are that a woman generally can't protect herself from a physically stronger male. If she could, the number of rapes would no where nearly be as high as they are.

    So yes, generally women do need men to physically protect them in unfriendly circumstances. The history of humankind proves that.

    Wat you seem to be underestimating are the nefarious and imaginative ways predators can contrive to create victims for themselves in the ripe environment provided to them by Charlotte.

  • Susan Eaton May 5, 2016
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    I read your posts. I even hear the concern you express in your posts. I don't dismiss you or call you names. I don't patronize your point of view. I will say this -- I believe, as a woman, that you are seriously underestimating us females as a gender. That is what I am expressing to you. I am not "using women and children", I AM a WOMAN with CHILDREN who has used public restrooms and locker rooms all of my life and would protect my children with my life. And I will express my point of view here in this public forum, just as you do. I just don't need to call you "names" or use hyperbole to do so.

  • Mark Cahall May 5, 2016
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    The sort of disingenuous radical left propaganda
    you just posted is such transparent disinformation that it totally destroys any illusion of believability you're hoping to portray.

    Do you really expect people to buy that a sexual predator couldn't take advantage of loopholes so big they could fly a space shuttle through them that the Charlotte mandate gave to them on a silver platter?

    Everyone knows you're a leftist that is using women and children to further your and Roy Cooper's radical political agenda.

  • Janet Ghumri May 5, 2016
    user avatar

    Should it come to a point where transgender citizens would have to reach a (physical/medical) standard before being able to use the shower/locker room of the gender they are conforming to?
    Would that be an acceptable practice? I'm not addressing bathrooms intentionally, because most have these cool little stalls with doors.
    If this were an accepted practice it may alleviate some concerns, think of it like age levels (no alcohol sale due to underage, voting age, etc) because minimum age requirements are Instituted to protect not just the person in question, but also to protect the public at large.
    If someone feels that they are in the wrong body, sexually, it's not an overnight switch, the process takes years to complete. Someone who is truly transgender would not be a threat in these most vulnerable places.
    It could be an indication on the drivers license, just like an organ doner or eyeglass restrictions.
    Just a thought

  • Susan Eaton May 5, 2016
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    This law does nothing to address sexual predation and violence against women. That is mythology and there are now many references backing this up as myth, hence the governor's and GA's change of tone to "protecting privacy". Speaking as a woman, we don't need you to "protect us". Men have been peeping on women for as long as there have been males and females, in the bathroom and everywhere else. This law does nothing to prevent what has already been happening for centuries and the false outrage "on my womanly behalf" is beyond patronizing and annoying at this point. If you want to address sexual and domestic violence against women, this is nothing but a mockery of how to do so.