Last week, the United States Department of Justice informed North Carolina Gov. Pat McCrory (R) that his state’s anti-transgender bathroom law violates federal law. The letter threatened to sue the state if it did not abandon its efforts to bar transgender individuals from restrooms that correspond with their gender identity, and it gave the state until Monday to confirm that it would not implement its anti-trans law.
Well, it’s Monday, and Gov. McCrory has responded — with a big fat middle finger.
McCrory filed a federal lawsuit seeking a declaration that North Carolina’s anti-trans law, HB2, does not violate two separate provisions of federal civil rights law. Notably, the suit was filed by an attorney within the governor’s office, as well as several lawyers in private practice. The state’s attorney general, Roy Cooper (D) has refused to defend the law, calling it “a national embarrassment.”
The complaint initiating the lawsuit — styled as McCrory v. United States — begins with a flourish: McCrory and another state official bring this suit against the United States and several federal officials “for their radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered state employees”
That’s a bold claim, but it is also a misleading one. Title VII forbids employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” Moreover, as the Justice Department explains in its letter to McCrory, the Supreme Court “made clear in Price Waterhouse v. Hopkins that discrimination on the basis of ‘sex’ includes differential treatment on any ‘sex-based consideration.’” HB2 singles out trans employees for inferior treatment because of a “sex-based consideration.”
The Justice Department’s letter includes several citations to federal court decisions holding that Title VII does forbid “discrimination against transgender individuals based on sex, including gender identity.” McCrory’s complaint responds with a similar list of citations to court decisions holding the opposite. Significantly, however, neither side cites a decision by the United States Court of Appeals for the Fourth Circuit, the federal appeals court that oversees North Carolina.
Something else is notably absent from McCrory’s complaint, moreover. The Justice Department’s letter concludes that HB2 violates three separate federal laws, Title VII, the Violence Against Women Reauthorization Act, and Title IX of the Education Amendments of 1972. McCrory’s complain claims that the state is not violating the first of these two laws, but it is conspicuously silent regarding Title IX.
It’s not hard to guess why McCrory is silent on this point. Last month, the Fourth Circuit held that it would defer to the Obama administration’s interpretation of Title IX regulations prohibiting bathroom discrimination against transgender individuals by educational institutions. Title IX provides that “[n]o person . . . 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,” so North Carolina risks losing hundreds of millions of dollars worth of federal education funding if it implements HB2 in its schools and universities.
McCrory’s silence regarding Title IX may be an acknowledgement that any effort to defend his states actions under Title IX is doomed, at least so long as the Fourth Circuit’s decision on this point remains in place.
One apparent silver lining for McCrory, however, is that his case has been assigned to a very conservative trial judge. Judge Terrence Boyle is a former aide to the late Sen. Jesse Helms (R-NC). Though President George W. Bush nominated Boyle to serve on the Fourth Circuit, that nomination was blocked by Senate Democrats.
Yet, even if Judge Boyle sides with McCrory (and it is worth noting that Boyle’s record on trans rights is not entirely hostile), his decision will ultimately appeal to the Fourth Circuit — a court that is dominated by Democratic appointees. Thus, while there is some disagreement within the circuits regarding transgender rights, it is likely that McCrory will draw an unfriendly panel in the court of appeals.
And that court could very well have the final word on this suit if the Supreme Court continues to have only eight justices.