Yesterday, the United States Department of Justice (USDOJ) mailed a letter to Governor Pat McCrory informing him that, in the opinion of USDOJ, House Bill 2 violates federal law. Specifically USDOJ said that HB2 violates Title VII, which prohibits discrimination in the workplace on the basis of sex. USDOJ Principal Deputy Assistant Attorney General Vanita Gupta wrote:
This letter is to inform you that the Department of Justice has determined that, as a result of compliance and implementation of North Carolina House Bill 2 (“H.B. 2”), both you and the State of North Carolina (the “State”) are in violation of Title VII of the Civil Rights Act of 1964…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 of practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies.
The letter then goes into more depth on Title VII and federal law, and states that it finds HB2 to be “facially discriminatory” — meaning that there is no way that it could be applied in a way that complies with Title VII. This brings us to the crux of the matter — what USDOJ is going to do:
When the Attorney General of the United States has a reasonable basis to believe that a state or person has engaged in a pattern or practice of discrimination in violation of Title VII, she may apply to the appropriate court for an order that will ensure compliance with Title VII…This responsibility has been delegated to the Principal Deputy Attorney General of the Civil Rights Division.
Please advise the Department therefore, no later than close of business on May 9, 2016 whether you will remedy these violations of Title VII, including by confirming that the State will not comply with or implement H.B. 2, and that it has notified employees of the State and public agencies that, consistent with federal law, they are permitted to access bathrooms and other facilities consistent with their gender identity.
Essentially, the United States Attorney General has threatened to file a Title VII enforcement action against Governor Pat McCrory, the University of North Carolina, and the North Carolina Department of Public Safety unless they cease the implementation of HB2.
The USDOJ letter comes on the heels of a Fourth Circuit decision holding that a transgender individual can state a claim under under Title IX for discrimination on the basis of gender identity, even though the text of Title IX prohibits discrimination only on the basis of “sex.” Granted, Title IX and Title VII are different sets of law — the former outlaws discrimination based on sex at any educational institution receiving federal assistance, while the latter deals with many forms of discrimination in employment. Nonetheless, the Fourth Circuit decision and the USDOJ letter reflect an increasingly willingness on the part of the federal government to include discrimination against transgender individuals as discrimination on the basis of sex.
Soon after the issuance of the USDOJ letter, the Wall Street Journal reported that the McCrory administration is considering how to move forward:
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.,” said Mr. McCrory. “The right and expectation of privacy in one of the most private areas of our personal lives is now in jeopardy. We will be reviewing to determine the next steps.”
The Wall Street Journal report also indicated that Representative Paul Stam anticipates compliance with the federal mandate, but disagrees with the actions of USDOJ:
House Speaker Pro Tem Paul Stam said he doesn’t support changes to the law for now. “Obviously we’re not going to say ‘Yes sir, yes sir, Mr. President,’ ” he said.
Mr. Stam said it is wrong for the Justice Department to use the letters to send a message about bathroom use by transgender people that could apply to all major employers.
“The Obama administration has declared war on everybody in the whole nation,” he said. “They are saying gender identity is purely subjective, and has no objective criteria.”
For the moment, it is unclear how the McCrory administration and others in state government will handle the issue. The letter reads as though HB2 clearly puts North Carolina out of compliance with Title VII. However, a second glance reveals that none of the federal courts cited in the letter has jurisdiction over North Carolina. According to Thomas Wheatley at The American Thinker, this calls the claims of the letter into question:
Yes, technically, the Justice Department is accurate in saying that “federal courts” have applied Title VII to claims the basis of which is solely a person’s transgender status; rather, a handful of federal courts have held as much. The overwhelming majority of federal courts have not.
Why did the Department of Justice fail to mention these cases? Surely the omission was not deliberate. Don’t they know that, were this an actual case, cherry-picking case law and making an argument based on an incomplete representation of the law flirts dangerously with violating Rule 11(b) of the Federal Rules of Civil Procedure?
No, I’m sure it was an accident.
Regardless, USDOJ gave Governor McCrory and others until next week to respond.