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The day McCrory went to war

The battle over North Carolina’s controversial HB2 Bill heated up recently when Governor Pat McCroy and the Department of Justice filed almost simultaneous lawsuits against each other in United States District Court.

Photo by TWC News.

North Carolina Governor Pat McCrory and the U.S. Department of Justice (DOJ) are locked in a struggle of potentially epic proportions after filing dueling lawsuits in the United States District Court for the Middle District of North Carolina on May 9, 2016.  Some are decrying the DOJ’s action against North Carolina as the latest example of political overreach by the executive branch in an attempt to unilaterally redefine federal law.  Others, including current Attorney General Loretta Lynch, are portraying these suits as a continuation of a civil rights struggle recalling battles for women’s rights and minority rights, and recently renewed by the gay rights victory in Obergefell v. Hodges.

In early February, the Charlotte City Council passed a series of hotly debated revisions to the anti-discrimination sections of their city ordinances.  The revisions added several new protected classes to the ordinance, including “sexual orientation, gender identity, and gender expression.”  The revisions also removed a pre-existing exception from the Charlotte city ordinances allowing separate “restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private,” based on sex.  The application of these ordinances to private businesses was particularly controversial.

In the wake of Charlotte’s revisions, North Carolina’s General Assembly called a special session to pass House Bill 2, colloquially known as “the Bathroom Bill.”  House Bill 2 removes authority from towns and cities in North Carolina to create their own ordinances involving employment and contracting.  The law also supersedes any pre-existing ordinances on the same subject matter, thereby repealing Charlotte’s newly revised anti-discrimination ordinances.  House Bill 2 also mandates that use of multiple-occupancy restrooms be divided based on physical sex, defined within the law as the sex stated on a person’s birth certificate.  This mandate, however, is only imposed on public restrooms, such as those in government buildings or in schools.

Governor McCrory’s suit requests clarification of federal law in the face of “the Obama Administration . . . bypassing Congress by attempting to re-write the law and set basic restroom policies, locker policies, and even shower policies for public and private employers across the country.” 

House Bill 2 sparked immediate controversy, placing North Carolina on center stage in an ongoing national debate among politicians, businesses, and individuals  regarding whether transgender persons should use bathrooms consistent with their biological sex or their gender identity.  On May 4, 2016, the DOJ sent letters to Governor McCrory, the North Carolina Department of Public Safety and the University of North Carolina, claiming that House Bill 2 violates Title VII and Title IX of the Civil Rights Act of 1964, and the Violence Against Women Reauthorization Act of 2013, or “VAWA.”  The letters essentially gave North Carolina an ultimatum: repeal House Bill 2 by May 9 or risk the full wrath of the Executive, including legal action and loss of Federal funding.

Monday, May 9 arrived, and instead of repealing House Bill 2, Governor McCrory filed a complaint against the DOJ seeking a declaratory judgment on whether House Bill 2 violates Title VII or VAWA.  Governor McCrory’s suit requests clarification of federal law in the face of “the Obama Administration . . . bypassing Congress by attempting to re-write the law and set basic restroom policies, locker policies, and even shower policies for public and private employers across the country.”  The Governor argues in his complaint that because multiple cited federal opinions have refused to extend Title VII protections to transgendered persons, the DOJ has overreached by attempting to extend Title VII further than its intended use.  Even if the courts determine that Title VII does apply to transgender persons, Governor McCrory argues that the Bathroom Bill does not differentiate between transgender and non-transgender persons, but merely requires all persons to use multiple-occupancy restrooms according to their biological sex.  Finally, Governor McCrory points out that House Bill 2 offers accommodations to transgender persons who no longer wish to use the restroom assigned to their biological sex.

Later in the same day, the DOJ filed lawsuits of their own against North Carolina, the University of North Carolina, and the North Carolina Department of Public Safety.  In a press conference shortly after filing the suit, Attorney General Loretta Lynch compared House Bill 2 to some of the Jim Crow era bathroom segregation based on race, saying, “[North Carolina] created state-sponsored discrimination against transgender individuals.”  The DOJ claims in their complaint that House Bill 2 discriminates against transgender persons under Title VII, Title IX, and the VAWA because they can no longer use restrooms consistent with their gender identity, unlike their non-transgender counterparts.  The DOJ’s position is that under Title VII, Title IX, and the VAWA, gender identity is protected from discrimination within the meaning of the protected class “sex.”

Sex is the term used for the class protected in both Title VII and Title IX, and at issue in the suit between Governor McCrory and the DOJ. 

Title VII makes discrimination on the basis of race, color, religion, national origin, or sex by an employer of fifteen or more persons illegal.  Title IX ensures that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  VAWA establishes a comprehensive approach for our justice system to deal with violence against women, both in punishing criminals and providing services that help victims recover.  North Carolina is subject to all three laws because billions of Federal dollars are provided to North Carolina agencies for uses such as education and public safety each year.

Governor McCrory and the DOJ’s disagreement on the protections offered by Title VII centers on the definition of “sex” as a protected class.  Though North Carolina did not raise any claims about Title IX in their complaint, they will undoubtedly discuss the meaning of “sex” in that Title as well when responding to the violations claimed by the DOJ.  The good news for Governor McCrory is that the plain language of both statutes and the weight of federal authority may suggest that “gender identity” is not protected under either Title.

Sex is generally defined as “either of the two main categories (male and female) into which humans . . . are divided on the basis of their reproductive functions.”  This is considered as opposed to “gender,” defined as “the state of being male or female,” especially in reference to social and cultural standards of gender rather than biological.  Sex is the term used for the class protected in both Title VII and Title IX, and is the same term at issue in the suit between Governor McCrory and the DOJ.  Traditionally, the courts used the biological definition of sex, not a definition based on gender identity.  The Governor cites six cases from United States District and Appellate courts in his complaint that determined “sex” refers to the biological state of being male or female.  According to the Governor, it therefore stands to reason that by protecting against discrimination on the basis of “sex,” Congress did not intend to protect gender identity.  If that is the case, then the DOJ and the Executive Branch as a whole, have overstepped their constitutional bounds by attempting to redefine federal laws, and should instead seek change by garnering congressional support.

The Governor argues that because House Bill 2 does not specifically focus on gender identity, and includes a section allowing accommodations based on gender identity, the law does not violate Title VII or VAWA.

Unfortunately for Governor McCrory, none of the cases he cites are controlling in the United States Court of Appeals for the Fourth Circuit, where the outcome of these suits will ultimately be reviewed.  In fact, if the Fourth Circuit or the Middle District applies the same reasoning to Governor McCrory’s suit as in the recently decided Grimm v. Gloucester County School Board, it may not matter what Congress intended in either Title VII or Title IX.  In Grimm the Fourth Circuit deferred to the U.S. Department of Education’s (DOE) interpretation of Title IX, an interpretation that included protections for gender identity within the class “sex.”  The Obama Administration and DOJ have made abundantly clear that they consider “sex” to include protections for gender identity under Title VII and Title IX.  Applied in the present case, that standard would effectively override Governor McCrory’s argument that gender identity is not protected under either Title.  However, even Grimm is not directly on point in this case, as Grimm focused on evidentiary standards for making a Title IX claim instead of statutory interpretation of the Title itself.

It is not as if the DOJ’s definition of “sex” as a protected class has been created out of thin air, at least not in the present case.  In Price Waterhouse v. Hopkins, Justice William Brennan wrote for the Supreme Court of the United States that “’[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”  Price Waterhouse involved Title VII discrimination against Ann Hopkins, who claimed she did not receive a promotion because she did not act or appear feminine enough in the workplace.  Though not directly on point in cases involving gender identity, Price Waterhouse has been cited both in opinions for the United States Court of Appeals for the Sixth Circuit and the Equal Employment Opportunity Commission as support for extending Title VII protections to transgender persons.  Former Attorney General Eric Holder cited Price Waterhouse and these subsequent opinions as validation of his determination “that the best reading of the statute, and the developing jurisprudence in this area, is that it encompasses discrimination based on gender identity, including transgender status.”  Current Attorney General Loretta Lynch will likely use argue the same authorities in support of the DOJ’s position.

Even if sex does include gender identity, Governor McCrory claims in his complaint that House Bill 2 does not discriminate against transgender persons.  The Governor argues that because House Bill 2 does not specifically focus on gender identity, and includes a section allowing accommodations based on gender identity, the law does not violate Title VII or VAWA.  Governor McCrory cites a handful of cases from other circuits holding that a state may balance conflicting rights in the workplace.  All House Bill 2 does, according to the Governor, is balance the privacy rights persons who conform to their biological sex have, with the rights if any, that exist under Title VII and VAWA, of those who conform to a different gender identity.  The DOJ, on the other hand, says that House Bill 2 causes much more harm to the privacy rights of  transgender persons than any harm done to the privacy rights of non-transgender persons.

Regardless of how the Middle District rules, this case is shaping up to be a titanic struggle between Governor McCrory and the DOJ, perhaps even seeing a future in the Supreme Court.  McCrory v. United States has the potential for incredibly significant consequences to the legal definition of sex in the United States, protections for gender identity under Title VII, Title IX, and VAWA, and the power of the Executive branch to interpret (or reinterpret, depending on which view you take) federal law.  Only time will tell what the impact this case has on our country.

Jonathan Eure, Staff Writer
About Jonathan Eure, Staff Writer (11 Articles)
Jonathan Eure is a third-year law student and serves as a senior staff writer for the Campbell Law Observer. He lived in Morganton, in the foothills of North Carolina, before moving to Raleigh for law school. He earned BA’s in Political Science and History from the University of North Carolina at Chapel Hill, graduating in 2014. The summer after his first year of law school, Jonathan worked as a legislative research intern with Representative Rob Bryan in the North Carolina General Assembly. Jonathan now interns with the Honorable Paul Newby at the North Carolina Supreme Court. Jonathan is the Secretary for the Campbell Public Interest Law Student Association (CPILSA).