The U.S. Department of Justice and North Carolina Face Off On Transgender Rights

On Monday, the U.S. Department of Justice and the State of North Carolina exchanged federal law suits concerning the legality of a recently enacted North Carolina law known as H.B. 2”. The law requires public agencies in North Carolina to restrict access to multiple occupancy bathrooms to individuals of the same biological sex.” The law prohibits public agencies from permitting transgender individuals to use bathrooms that correspond with their gender identity. The law also repeals local anti-discrimination ordinances.

Last week, the DOJ notified North Carolina Governor Pat McCrory that the state’s enforcement of H.B. 2 violated Title VII of the Civil Rights Act. The DOJ gave the Governor until Monday to remedy the violations. Instead, Gov. McCrory filed a lawsuit seeking a determination that H.B. 2 is non-discriminatory and does not violate federal law. Later in the day, the DOJ filed its own lawsuit charging North Carolina with violations of three federal statutes, including Title VII of the Civil Rights Act of 1964 which prohibits discrimination in the terms, conditions and privileges of employment. The DOJ Complaint alleges that H.B. 2 discriminates against employees of state agencies by allowing non-transgender employees to use facilities that correspond to their gender identity while denying that same right to transgender employees.

At a press conference on Monday, Attorney General Loretta Lynch delivered strong remarks in opposition to the North Carolina law, comparing it to the Jim Crow laws which enforced racial segregation in the South. The Attorney General described the law as state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security – a right taken for granted by most of us.” Speaking to the transgender community, Attorney General Lynch stated we see you; we stand with you; and we will do everything we can to protect you going forward.”

The DOJ’s challenge to H.B. 2 comes on the heels of a recent Fourth Circuit decision covered by this blog, which permitted a high school student to sue his school board for discrimination after they barred him from using the restroom that matched his gender identity. The DOJ’s reaction to H.B. 2 and the Attorney General’s remarks concerning the law suits serve to reinforce the DOJ’s commitment under the Obama Administration to issues that affect the transgender community, including employment issues. Indeed, the DOJ’s action on Monday is consistent with the EEOC’s recent aggressive efforts to protect the rights of transgendered employees, which we have also covered in this blog. Employers should remain conscious of the federal government’s position on these issues, and also stay apprised of any changes in state or local law, which in some cases may conflict with federal laws or a federal agency’s interpretation of those laws. We will continue to monitor any new developments in this area.