May 10, 2016 - News

EXPLAINER: The showdown between Gov. McCrory and the federal government

Monday was another full day of news regarding House Bill 2, the state’s reaction to Charlotte passing an ordinance barring discrimination against transgender people. Here’s a breakdown of the back and forth.

How’d we get here?

If you’re joining this now, you’ve got some homework to do. I’ll do my best to give you the TL;DR version.

  1. Charlotte expands the city’s nondiscrimination ordinance in February to include gender identity as a protected class. As part of this, it allows transgender people to use the bathroom of their gender expression.
  2. The state legislature convenes an emergency session to override it. House Bill 2 requires people in government buildings to use the bathroom of the gender on their birth certificate
  3. North Carolina becomes the center of a political firestorm. Music artists cancel concerts, businesses cancel expansions, and the nation’s eyes are focused negatively on the state.
  4. Gov. Pat McCrory (former Charlotte mayor) issues an executive order that makes gender identity a protected class for state government employees only, and says state agencies will make “reasonable accommodations” with single-occupancy bathrooms for transgender workers.
  5. The outcry continues.

What did the federal government do?

Last week, the U.S. Department of Justice sent Gov. McCrory a letter stating that House Bill 2 was a violation of federal law, and gave him until Monday to repudiate it.

Specifically, the letter said that North Carolina was denying transgender state government employees their full rights.

By the way, this isn’t anything particularly new. There are years of case law where judges have found that gender identity is protected under the “sex” provisions of the Civil Rights Act. For example, the Equal Employment Opportunity Commission specifically says that denying a worker a common bathroom matching their gender expression violates the law.

So, what did McCrory do?

He chose to take the federal government to court.

McCrory is personally named as a plaintiff in a lawsuit in federal court against the United States of America and the Justice Department. It calls the federal government’s interpretation a “baseless and blatant overreach” and asks for a federal court to declare that North Carolina’s law is OK.

Basically the argument is that if the U.S. wants gender identity to be a protected class, they should have Congress make it one. Also, they say that they are not discriminating because they promise to let transgender people use a single-occupancy bathroom.


How’d the Justice Department take it?

Not well. They sued back.

The U.S. Department of Justice’s lawsuit mostly reiterates what was in their letter.

Basically the argument is that there is discrimination because non-transgender people have the right to use the bathroom of their gender identity, while transgender people do not.

U.S. Attorney General Loretta Lynch had strong words against the law in a Monday afternoon press conference.

“They created state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security — a right taken for granted by most of us,” she said.

She also compared the law to Jim Crow laws and resistance to Brown v. Board of Education, which required integrated education.

Where is the big disagreement here?

The two lawsuits make it starkly clear that the state and federal governments disagree on whether it’s really a thing to be transgender.

From McCrory’s lawsuit: “Biological sex is the physical condition of being male or female, and the
Act notes that such condition is ‘stated on a person’s birth certificate.'”

From the federal government’s lawsuit: “An individual’s ‘sex’ consists of multiple factors, which may not always be in alignment. Among those factors are hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female.

For individuals who have aspects of their sex that are not in alignment, the person’s gender identity is the primary factor in terms of establishing that person’s sex. External genitalia are, therefore, but one component of sex and not always determinative of a person’s sex.”

What happens now?

It looks like this is all going to play out in federal court. Both lawsuits will be considered in federal district court to begin with, before the inevitable appeal to the Court of Appeals.

It’s not unlike the court battles that ultimately resulted in a Supreme Court decision that gay marriage is legal throughout the United States.

What’s at stake?

Besides the public relations and economic development disaster this has all been, about $4.5 billion in federal money is in the balance. That’s what the federal government gives for schools, colleges and roads.

This equates to real jobs in Charlotte. Teachers would lose their jobs.

Luckily for federal funded teachers here in Charlotte, Lynch did not make it sound like revoking that money is imminent. But she did say Monday that she reserves the right to pull it. She would not give an ultimatum as far as date.

If I had to guess, she is going to let this all play out through the court system.

What are the politics here?

This is an election year, and Gov. McCrory is in a tight battle for a second term. He is already using his battle against the Justice Department as a fundraising tool, and appears to be going all-in on this issue as an appeal to conservative voters.

His opponent, N.C. Attorney General Roy Cooper, has opposed House Bill 2.

There is a good chance that this issue will not be resolved by November’s election.

Grab bag of Q&A

Who is the judge in this case? Don’t know who specifically yet, but this will be in U.S. District Court. One of the courthouses is in Charlotte.

How much will this cost the taxpayers? Probably a lot. In a lot of these cases, the state is having to hire attorneys because Cooper, the attorney general, refuses to litigate them because of political differences. I’m not 100% sure on the specifics here, but McCrory’s campaign is raising money for a legal defense fund so some of the costs are going to fall on him.

Why N.C. and not other states? Yes, there are other states with similar laws. Some of this is politics and because North Carolina is the state in the spotlight. But don’t rule out this spilling over there, too. Lynch said she would evaluate laws in other states as they became known to her. And any Supreme Court ruling would obviously be binding nationwide.

Texas, for one, put out a statement standing with McCrory.

Who is Loretta Lynch? Fun fact, U.S. Attorney General Loretta Lynch is a North Carolina native from Greensboro. She made several references to N.C. being her “home state” in the press conference Monday.


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