Prior posts on this blog have discussed recent conflicts in Alabama and Mississippi that frame our country's ongoing efforts to define the scope of federalism. Now, North Carolina has become the newest front in the fight to determine which sovereign—state or federal—has the final say.
In March, the North Carolina General Assembly enacted the Public Facilities Privacy and Security Act, also known as HB2. Among other things, HB2 restricts multiple-occupancy bathrooms and changing rooms at state facilities, including schools, to use based on " biological sex." Transgender state employees therefore must use the facilities designated for " the sex on their birth certificate" and not the facilities that are consistent with their gender identities. In April, Governor Pat McCrory issued an executive order that affirmed HB2.
Similar state legislation has cropped up elsewhere. In Tennessee, HB 2248, passed last month, divests the University of Tennessee of $400,000 allocated to the Office of Diversity and Inclusion. The purpose of the bill is to eliminate the university's expenditure of state funds " to promote the use of gender neutral pronouns, to promote or inhibit the celebration of religious holidays, or to fund or support Sex Week at UT."1 Likewise, Tennessee Governor Bill Haslam signed into law on April 27, 2016, a bill that allows mental health professionals to refuse to serve clients whose " goals, outcomes, or behaviors" conflict with their " sincerely held principles."
Yet Tennessee's version of HB2 was withdrawn when sixty large companies that do business in the state objected to the bill and several organizations threatened to cancel conventions here. State Attorney General Herbert Slattery III warned that the bill would have put federal education dollars at risk.
None of these concerns deterred North Carolina, however, and the federal government now has waded into the fray. On May 4, 2016, the Civil Rights Division of the U.S. Department of Justice (DOJ) wrote a letter to Governor McCrory, informing him that HB2 and his effectuating executive order violated Title VII of the Civil Rights Act of 1964. Specifically," the DOJ explained, "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 or practice of resistance to the full enjoyment of Title VII rights by transgender employees of public agencies. The DOJ concluded by noting that it had sent similar correspondence to the North Carolina Department of Public Safety and the University of North Carolina and asked the governor to advise it, no later than May 9, 2016, whether he would remedy these violations of Title VII, including by confirming that the State will not comply with or implement H.B.2[.]"
Governor McCrory responded by filing lawsuit. According to the governor, the DOJ's letter advanced a "radical reinterpretation of Title VII . . . which would prevent [North Carolina] from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered state employees." North Carolina, the governor went on, "intend[s] to follow [state] law requiring public agencies to generally limit use of multiple occupancy bathroom and changing facilities to persons of the same biological sex" The governor thus seeks a declaration that HB2 does not violate Title VII and an injunction that prevents the DOJ from interfering with its implementation. A second lawsuit filed by state representatives requests the same relief, invoking "the sovereign right of North Carolina's citizens to decide how best to protect their own bodily privacy and dignity in intimate public settings
Not to be outdone, the DOJ filed its own lawsuit yesterday afternoon. Noting that HB2 was a response to a Charlotte city ordinance that permitted transgender individuals to use public facilities consistent with their gender identities, U.S. Attorney General Loretta Lynch remarked that the law " inflict[s] further indignity on a population that has already suffered more than its fair share." She also located HB2 within a broader history of state-based discrimination: " It was not so very long ago that states, including North Carolina, had signs above restrooms, water fountains and on public accommodations keeping people out based on a distinction without a difference . . . . Let us write a different story this time."
As the three lawsuits have been filed in separate federal courts, consolidation is likely the next step. Regardless, the fate of HB2 is sure to set the tone for future conflicts over federalism. Which sovereign should decide, state or federal? The ultimate answer may surprise us all.
Footnotes
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