Obama administration says HB2 violates federal civil rights laws

President Barack Obama's Justice Department has ordered North Carolina to stop enforcing a portion of a new state law preventing transgender state workers from using the bathroom of their choice.

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Mark Binker
RALEIGH, N.C. — 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.
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.

"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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