Last week, the U.S. Department of Justice declared North Carolina’s “bathroom law” discriminatory, and demanded that North Carolina Governor Pat McCrory respond by Monday, promising the state wouldn’t enforce the law.
On Monday, McCrory delivered his answer—but not his acquiescence. The governor said he had filed a suit asking federal courts to intervene and clarify the law in question.
“The Obama administration is bypassing Congress by attempting to rewrite the law and set restroom policies for public and private employers across the country, not just North Carolina,” he said in a statement. “This is now a national issue that applies to every state and it needs to be resolved at the federal level.”
The North Carolina General Assembly passed HB2 during a special one-day session in March. The bill was proposed, debated, passed by both chambers of the legislature, and signed into law within 12 hours. Among other things, the law mandates that transgender people use bathrooms in state buildings—including schools and universities—corresponding to the gender on their birth certificate, not the one with which they identify. It also barred cities from enacting ordinances that require transgender bathroom accommodation.
Backlash to the law has been fierce—from entertainers, businesses, and most recently the Obama administration. In a letter on May 4, Deputy Assistant Attorney General Vanita Gupta informed McCrory that the Department of Justice had determined that HB2 violated Titles VII and IX of the Civil Rights Act. Gupta said that the state should respond by Monday agreeing not to enforce the law, or it would risk having the federal government shut off the spigot of money that goes to states for education.
Republican leaders in the Old North State did not take the letter kindly. House Speaker Tim Moore said that state would not comply. McCrory, also a Republican, was slower to respond—he complained about the letter but did not announce his plans. Over the weekend, he said on Fox News Sunday that he had requested more time to respond to the federal government. McCrory said DOJ had offered him a one-week extension if he was willing to admit the law was discriminatory, which he was not. “It’s the federal government being a bully, making law,” McCrory said Sunday. The Justice Department did not immediately return a request for comment about the condition. According to The News and Observer, a Justice spokeswoman said in a statement Sunday, “On Friday, the department received requests from multiple parties for an extension of the deadline in our May 6 letters. The discussions regarding those requests are ongoing.”
McCrory’s lawsuit on Monday asks federal courts to clarify on a couple key areas of the law. The Justice Department notes that Title VII of the law prohibits employment discrimination on the basis of gender, and says that courts have interpreted that to include gender identity of transgender people. In the suit, McCrory asks federal courts to issue a declaratory judgment saying that the state is not in violation of Title VII or of the Violence Against Woman Act.
“North Carolina does not treat transgender employees differently from nontransgender employees,” the complaint argues (via WRAL). “All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgendered status.”
The Justice Department did also not have an immediate response to the suit.
The mechanism of the federal government's threat is somewhat complicated. While the law might violate the Civil Rights Act, such a ruling would have to come from a federal court, not the Justice Department. But Washington provides billions of dollars to the states for education. Interpretation of Title IX generally follows Title VII, so if the federal government decides that a law like HB2 violates Title IX, it can threaten to cut off money to the states.
That’s a powerful threat—North Carolina receives billions in essential funding. McCrory’s lawsuit hopes to get courts to rule that withdrawing that money is improper. The request should buy the governor time, but it’s unclear how promising the court landscape will be. In April, a panel of judges on the Fourth Circuit Court of Appeals ruled that the Department of Education could interpret Title IX to include transgender people, a decision that the Department of Justice cited in its letter to McCrory.
In the absence of a court decision, it isn’t entirely clear whether the federal government can simply block funding, and any attempt to do so would likely produce more litigation. The feds have on occasion threatened to cut off funds using letters like the one to McCrory, but in most cases the letters have coerced their recipients into cooperating.
A judgment in this case could have wide-reaching implications, both nationally and at the state level. While McCrory pointed out that the case could apply to other states, North Carolina also faces threats from other federal agencies, including the departments of Transportation and Housing and Urban Development, to withhold billions more in monies.
The governor is speaking at 1 p.m. in Raleigh. We’ll update this story as we have more information.