By MARK BERMAN
and SARAH LARIMER
Washington Post
The Justice Department filed a lawsuit Monday against North Carolina authorities, hours after the state filed its own lawsuit against the federal government pushing back against attempts to convince authorities not to enforce the so-called “bathroom bill.”
These dueling lawsuits marked a sharp escalation in the fight between the two sides over a law specifying who can use which bathrooms in North Carolina, a measure that has thrust the state into the epicenter of the debate over transgender rights. Both complaints came five days after Vanita Gupta, head of the Justice Department’s civil rights division, had sent a letter to North Carolina Gov. McCrory, a Republican, calling on him to say that he would abandon the law, which bans transgender people from using bathrooms that don’t match the gender on their birth certificates.
“This is about the dignity and respect that we accord our fellow citizens and the laws that we as a people and a country have enacted to protect them,” Attorney General Loretta E. Lynch said during a news conference after the Justice Department’s lawsuit was filed.
Lynch compared the bathroom law to earlier measures that mandated different bathrooms and water fountains for black and white people. Aiming her remarks directly at residents of North Carolina, her home state, she said: “This law provides no benefits to society and all it does is harm innocent Americans.”
McCrory filed a lawsuit Monday morning against the Department of Justice, asking a federal court to rule that its so-called “bathroom law” is not discriminatory. In his complaint, McCrory accused the federal government of “baseless and blatant overreach,” and he said he was filing the lawsuit to help stave off uncertainty sparked by the debate and to ensure that North Carolina does not lose out on federal funding until the issue is resolved in court.
“We believe a court rather than a federal agency should tell our state, our nation and employers across the country what the law requires,” McCrory said during a news conference Monday afternoon. He added: “Right now, the Obama administration is bypassing Congress by attempting to rewrite the law and set basic restroom policies. . . . for public and private employers across the country.”
In its own filing Monday, the Justice Department followed through on what Gupta had hinted in her letter last week. Gupta had said that the Justice Department believed North Carolina was violating Title VII of the Civil Rights Act of 1964 by “engaging in a pattern or practice of discrimination against transgender state employees.” The letter went on to say that if Lynch had a reason to believe a state was doing this, she could head to court to remedy the issue.
After North Carolina filed its lawsuit Monday morning, the Justice Department said Attorney General Loretta E. Lynch would announce a “law enforcement action related to North Carolina” later in the day, but did not specify what that would be. This action marks the second high-profile confrontation between Lynch, a North Carolina native, and the Tar Heel State, as they are facing off in a fight over voting rights.
The federal complaint against North Carolina said the bathroom bill “requires public agencies to follow a facially discriminatory policy of treating transgender individuals, whose gender identity may not match their birth certificates, differently from similarly situated non-transgender individuals.”
The Justice Department had sent a letter to McCrory last week saying it determined that the controversial legislation, known as House Bill 2, violated federal civil rights law. Federal officials said that if no changes were made by the end of business Monday, they were prepared to file a lawsuit or strip the state of some federal funding. McCrory painted his lawsuit Monday as a response to the timetable laid out by the federal government.
“I do not agree with their interpretation of federal law,” McCrory said during his news conference. “That is why this morning I have asked a federal court to clarify what the law actually is.”
Gupta, speaking at a news conference Monday, said that referring to the law as just a bathroom bill “trivializes” its true impact, saying that it has far-reaching implications for people across all swaths of life in North Carolina.
The Justice Department and North Carolina are already facing off in a fight over voting rights, as the federal agency joined other groups to challenge a North Carolina voting signed by McCrory in 2013 that is among the strictest in the nation, prohibiting same-day registration and voting and reducing early voting. (The Justice Department’s lawsuit against North Carolina in the voting case was first announced under former attorney general Eric H. Holder Jr., Lynch’s predecessor.)
A federal judge last month upheld this law, saying that “North Carolina has provided legitimate state interests” for its provisions. Civil rights groups have appealed the ruling in this case, which experts say could have legal ramifications for voting across the country during this election year.
In the fight over the bathroom law, McCrory said Monday the Justice Department had asked North Carolina officials to “set aside their constitutional duty and refuse to follow or enforce our state law.” As he did last week after receiving the letter, McCrory said that this has broad implications, stating: “This is not just a North Carolina issue. This is now a national issue.”
The White House was critical of North Carolina’s decision Monday. Josh Earnest, the White House press secretary, said during a briefing that the state was “asserting that this mean-spirited law is somehow consistent with the Civil Rights Act and with our values.”
Earnest said he did not know of any way the lawsuit had changed the ongoing reviews several federal agencies are conducting to consider withholding funding to North Carolina.
A day before filing the lawsuit, McCrory had said he planned to respond to the Justice Department’s letter by the Monday deadline, though he has criticized what he called the “unrealistic” deadline laid out by federal officials. McCrory said over the weekend that when he asked for more time to respond, he was told he could only get an extension if he publicly called the bathroom law discriminatory.
“I’m not going to publicly announce that something discriminates, which is agreeing with their letter, because we’re really talking about a letter in which they’re trying to define gender identity,” McCrory said in an interview Sunday with Fox News. “And there is no clear identification or definition of gender identity. It’s the federal government being a bully.”
Lynch said Monday that the extension request was being considered by federal officials. She also said the only people who likely feel bullied are transgender people.
Even though he had not explicitly said how he planned to respond to the letter, McCrory has repeatedly decried the Justice Department’s demand as government overreach. In an interview last week, Dan Forest, the Republican lieutenant governor, said he thought North Carolina had “equal standing to sue the government” over the matter.
This was echoed by the head of the Family Research Council, a socially conservative group.
“After nearly eight years of federal overreach, we are seeing state leaders stand up to Barack Obama’s effort to fundamentally transform America,” Tony Perkins, president of the Family Research Council, said in a statement. “I commend Governor McCrory for his political courage and moral clarity in resisting the Obama administration. If the White House can dictate the bathroom policies of America, what could possibly be beyond their reach?”
In a statement, Chad Griffin, president of the Human Rights Campaign, called the law “blatantly unconstitutional.”
“The idea Governor McCrory is going to waste even more time and millions more taxpayer dollars defending it is reckless and wrong,” Griffin said. “HB2 is a vile law attacking transgender North Carolinians and leaves many more unprotected from discrimination. Rather than defending it, Governor McCrory should be working with state lawmakers to fix the mess he’s created.”
Three groups challenging the bathroom measure in federal court – American Civil Liberties Union, ACLU of North Carolina and Lambda Legal – released a statement saying that McCrory “doubled down on discrimination” against transgender people with his suit Monday.
“Transgender people work for the state of North Carolina, attend school in North Carolina, and are a part of every community across the state,” the groups said in their statement. “It is unconscionable that the government is placing a target on their backs to advance this discriminatory political agenda. Lawsuits are normally filed to stop discrimination – not to continue it.”
McCrory was not the only official in the state to receive a Justice Department letter about the bathroom law. Officials also sent letters to the state’s Department of Public Safety and the University of North Carolina. Frank L. Perry, secretary of the public safety department, joined McCrory in filing the complaint.
Notably absent from this complaint: Margaret Spellings, president of the University of North Carolina system, who has said she would also respond by the Monday deadline. Officials with the university system did not immediately respond to a request for comment.
North Carolina receives more than $4 billion in federal education funding each year, much of it in the form of student loans, and the Education Department has said it is reviewing whether to withhold that money due to the bathroom law. The government has withheld funds from schools before over civil rights issues, holding back money from dozens of Southern states that refused to desegregate in the 1960s.
The Justice Department’s letter gave McCrory until the close of business Monday to say whether the state “will not comply with or implement” the measure and told state employees that “consistent with federal law, they are permitted to access bathrooms and other facilities consistent with their gender identity.”
North Carolina Attorney General Roy Cooper, a Democrat, who will face McCrory in what is expected to be a close gubernatorial election in November, has said he will not defend the measure. A spokesman for Cooper dismissed McCrory’s complaint that the federal government gave the state less than a week to respond to the letter.
“Governor McCrory signed HB2 into law in the dark of night after passing it in just 12 hours, and now complains when he’s given five days to defend it,” Ford Porter, the spokesman, said in a statement. “The governor needs to undo this law now and stop playing politics with our economy.”
McCrory has repeatedly defended the state law, which he signed in March, as being a necessary response to a Charlotte city ordinance that expanded civil rights protections for people based on sexual orientation and gender identity. He reiterated this view on Monday.
Leaders in the state said they were not approaching the Monday deadline expecting McCrory or the general assembly to alter the law. North Carolina House Speaker Tim Moore, a Republican, told reporters last week that legislators would “take no action by Monday” and “that deadline will come and go.”
Forest, the lieutenant governor, said after speaking with McCrory’s staff that he did not think the governor would turn to an executive order to tweak the law before the deadline. “I don’t think he would do that, I don’t think he has any intent of doing that, he hasn’t even hinted at that,” Forest said last week, noting that he does not speak for the governor.
The fight in North Carolina could have a major financial impact. In addition to the Education Department, several federal agencies are reviewing whether to withhold funding because of the law, putting potentially billions of dollars at stake.
The bathroom legislation in North Carolina has drawn intense opposition from business groups and, in at least two high-profile cases, cost the state jobs and money.
After McCrory signed the law, PayPal and Deutsche Bank both said they were abandoning expansion plans in the state because of the measure. The companies had planned to employ hundreds of people in the state, and state officials had said these expansions would have brought millions of dollars to local economies. The National Basketball Association has also said it will move the All-Star Game from Charlotte next season if the law is not changed.